IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.Rev.Pet.No. 503 of 2002() ----------------------------- CRL.A.NO.1/1999 OF SESSIONS COURT, THODUPUZHA, ST.NO.1205/1993 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI. .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- DEVARAJAN, S/O. SEKHARAN, KOOTTUMPURATHU HOUSE, MANNITHANDU BHAGAM, ADIMALY KARA, MANNAMKANDAM VILLAGE. BY ADVS. MR.N.K.KARNIS, MR.SAJI VARGHESE KAKKATTUMATTATHIL. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 503/2002: ORDER ON CRL.M.P. NO. 3331/2002 IN CRL.R.P. NO. 503/2002 DISMISSED 17/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.503 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of November, 2009 ORDER Revision petitioner is the accused in S.T.No.1205/1993 of Judicial First Class Magistrate Court, Adimali and appellant in Crl.Appeal No.1/1999 of Sessions Court, Thodupuzha. He was convicted under Section 279 and 337 of IPC and was sentenced to undergo simple imprisonment for thirty days under Section 279 of IPC and simple imprisonment for a period of sixty days under Section 337 of IPC which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on August 9, 1993 at about 1 p.m. the accused drove his lorry bearing Reg. No. KLF 5173 along the Adimaly- Kallarukutty road from west to east in a rash and negligent manner so as to endanger human life and dashed against the back side of Auto rickshaw bearing Reg. No. KL/7C-6022 which was parked on the side of the road at Adimaly as a result of which the driver of the Auto Crl.R.P.No.503/02 Page numbers rickshaw PW1 was thrown on the road and sustained injuries described in Ext.P3 wound certificate and that thereby committed the offence punishable under Section 279, 337 and 338 of IPC. 3. The accused on appearance before the trial court pleaded not guilty to a charge under Section 279, 337 and 338 of IPC. PWs 1 to 9 were examined and Exts.P1 to P6 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied having committed any offene. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 279 and 337 of IPC, convicted him thereunder and sentenced him as aforesaid. He was found not guilty of the offence punishable under Section 338 of IPC Conviction and sentence of the revision petitioner are confirmed in appeal. The revision petitioner has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision Crl.R.P.No.503/02 Page numbers petitioner under Section 279, 337 of IPC rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh? 6. Heard counsel for the revision petitioner and Public Prosecutor. Point No.1 7. PWs 1 to 9 were examined . Exts.P1 to P6 were marked on the side of the prosecution to prove the guilt of the accused. PW2 is the the defacto complainant who sustained injuries in the accident. He turned hostile and did not support the prosecution. PWs 1 and 3 who are the independent witnesses did not support the prosecution. PW4 is another eye witness who supported the prosecution. PW5 is an attestor to scene mahazar Ext.P2. PW6 is the doctor who treated PW2 and issued Ext.P3 wound certificate. PW2 sustained only three abrasions and a lacerated wound. PW7 is the investigating officer. PW8 is MVI who inspected both the vehicles and issued Exts.P4 and Crl.R.P.No.503/02 Page numbers P5 reports. PW9 is the Head Constable who recorded the FI statement. 8. The accident is not disputed. PW4 testified that the offending lorry dashed against the back side of the auto rickshaw. The accident itself shows that there was negligence on the part of the accused. The trial court as well as the lower appellate court has believed the evidence of PW4 regarding the negligence on the part of the accused. I have gone through his evidence. I find no reason to come to a different conclusion. Therefore, accepting the evidence of PW4, I hold that the accident occurred due to the rash and negligent driving of the offending lorry by the accused and that in the accident, PW2 sustained injuries described in Ext.P3 wound certificate. Though there was a charge under Section 338 of IPC, no evidence was adduced to show that PW2 sustained any fracture or any serious injuries. The counsel for revision petitioner argued that there is no reliable evidence to show that accused was driving the offending lorry at the time of the accident and that identification of accused by PW4 for the first time in court can be accepted without conducting test identification parade. There is no substance in the above contention. When PW4 was cross Crl.R.P.No.503/02 Page numbers examined it was not suggested that accused was not the driver of the offending lorry at the time of the accident. Even when questioned under Section 313 of Cr.P.C. accused did not say that he was not driving the lorry at the time of the accident. Therefore, in my view both the courts below are justified in rejecting the above contention of accused. For all these reasons, I am inclined to confirm the finding of the trial court which is confirmed in appeal that the accident occurred due to the rash and negligent driving of the offending lorry by the accused and confirm the conviction of the revision petitioner under Section 279 and 337 of IPC. Point No.2 9. As regards the sentence, the accident occurred on 09/08/1993 . Further PW2 sustained only minor abrasions. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 1000/- under Section 279 of IPC and a fine of Rs. 500/- under Section 337 of IPC would meet the ends of justice. There is another aspect. PW2 sustained injuries in the accident. Therefore, the revision petitioner is directed to pay a Crl.R.P.No.503/02 Page numbers compensation of Rs. 5000/- to PW2 as provided under Section 357(3) Cr.P.C., in default, to undergo simple imprisonment for three months. In the result, Criminal Revision Petition is allowed in part. Conviction of the revision petitioner under Section 279 and 337 of IPC is confirmed. Sentence is modified to the effect that revision petitioner is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for two months under Section 279 of IPC and to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for one month under Section 337 of IPC. The accused is also directed to pay a compensation of Rs. 5000/- to PW2 , the injured, in default to undergo simple imprisonment for three months as compensation as provided under Section 357(3) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 15/12/2009 to receive the sentence. Time is granted till 30-12-2009 for payment of fine and for payment of compensation. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.503/02 Page numbers