IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 175 of 2001() ----------------------------- CRA.28/1999 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.762/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVISION PETITIONER: --------------------- ALIYAS, S/O.YOHANNAN, MADATHIPARAMBIL, KOKKAPILLY P.O., THIRUVANIYOOR, KUNNATHUNADU TALUK. BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALM, REPRESENTING THE C.I. OF POLICE, CITY TRAFFIC POLICE STATION, KOCHI. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.175 of 2001 -------------------------------------- Dated this the 25th day of September, 2008. ORDER On the charge that revision petitioner, not holding driving licence at the relevant time drove offending lorry in a rash and negligent manner endangering human life on 13.7.1996 at about 10.30 a.m., hit the cycle which PW5 was riding with his younger brother aged about six years sitting on the front side causing injuries to PW5 and fatal injuries to his younger brother and that revision petitioner failed to intimate the incident at the police station, he faced trial for offences punishable under Sections 279, 337 and 304 A of Indian Penal Code (hereinafter referred as 'the Code') and the relevant provisions of Motor Vehicles Act (hereinafter referred as ‘the Act’). He was found guilty, convicted and sentenced to undergo rigorous imprisonment for one year for offence punishable under Section 304 A and payment of fine for offences punishable under Sections 279 and 337 and the relevant provisions of the Act. He was disqualified from driving any vehicle for a period of one month under Section 20 of the Act. He preferred appeal to the Sessions Court. The Sessions Court confirmed the conviction on all counts but reduced the substantive sentence awarded for offence punishable under Section 304A of the Code to rigorous imprisonment for six months. Aggrieved and dissatisfied, he has come in revision. Crl.R.P.No.175/2001 2 2. Heard both sides. Perused the records. 3. Following points arose for consideration – (I) Whether the concurrent finding entered by courts below that revision petitioner drove the offending vehicle rashly and negligently so as to endanger human life and caused the accident is justified by the materials on record. (II) Whether conviction of revision petitioner under the provisions of the Act can be sustained, and (III) Whether sentence is excessive. Points I and II 4. Case is that at the relevant time, revision petitioner was reversing the lorry from east to west. PW5, aged about nine years at the time of accident and 11 years at the time of giving evidence in the trial court was not able to say much about the accident except that he was riding the cycle with his younger brother, Sandheep sitting on the front side of the cycle and that the lorry came behind and hit the cycle, Sandheep fell on the road and the right, rear wheel of the lorry ran over the head of Sandheep. He succumbed to the injuries. PWs 6 and 7 are witnesses to the accident. They stated that the lorry driven by revision petitioner came at excessive speed in reverse from east to west and hit the children who were riding on cycle. It is their further case that while coming in reverse, revision petitioner had not sounded horn. Both of them identified revision petitioner as driver of lorry. 5. PW20, Circle Inspector who conducted investigation Crl.R.P.No.175/2001 3 prepared mahazar for scene of occurrence on the date of incident itself (Ext.P1). In Ext.P1, accident spot is stated as 2.10. metres north of the tar end, tarred portion having width of 5.40 metres, with road margin on either side, lie of road being east-west. He claimed to have seized Ext.P10, GVR of lorry produced by revision petitioner. Ext.P7 is the mahazar for seizure of the offending vehicle produced by revision petitioner on 17.7.1996. 6. That, accident was not due to mechanical defect of the vehicle is proved by Ext.P5. It is contended by learned counsel that going by the evidence of PWs 6 and 7, the children had emerged from a side road to the accident spot which could not be noticed by the driver of lorry. 7. That, revision petitioner was driving offending vehicle is spoken by PWs 6 and 7 and the evidence of PW17, the agreement owner of the vehicle also to some extent corroborated that version. 8. It is true that in Ext.P3 (FIS) PW6 stated that the children had emerged from Maliyekkal road and he admitted having told the Police so. PW7 stated that before the accident the children had emerged from Maliyekkal road. Ext.P1, mahazar for scene of occurrence does not mention about Maliyekkal road. Nor was it brought out on behalf of the revision petitioner that Maliyekkal road (side road) joined the main road at or near the accident spot so that, revision petitioner could not have seen the children emerging from that side road. On the other hand, going by Ext.P1 the children had already entered the main road. It is seen from Ext.P1 that the road is sufficiently straight at the accident spot. Evidence of PWs 6 and 7 show that revision petitioner was Crl.R.P.No.175/2001 4 taking the offending lorry in reverse at high speed without sounding horn. That resulted in the accident. Rear right wheel of lorry ran over Sandheep. On the evidence on record the concurrent finding entered by the courts below that revision petitioner drove the vehicle rashly and negligently so as to endanger human life and caused accident, required no interference. Conviction for offence punishable under Sections 279, 337 and 304 A of the Code therefore, is justified. 9. So far as offences charged against revision petitioner under the Act for allegedly driving the offending lorry without licence and not intimating the accident at the police station are concerned, prosecution depend on the evidence of PWs 6 and 7 who stated that immediately after the accident , revision petitioner ran away and PW6 informed the incident at the police station. From that, no inference is possible that revision petitioner had not intimated the police about accident. It was for PW20 or such other police officer concerned to state that no intimation was given by revision petitioner. That, they did not do. 10. Regarding the allegation of driving without licence, none of the official witnesses has spoken to that. PW20 only stated that his investigation revealed that revision petitioner was not having licence at the relevant time. Result of investigation is not admissible in evidence. PW20 was required to call upon the revision petitioner to produce driving licence if any. That was not done. As such, conviction for offences punishable under the Act and sentence imposed thereunder cannot be sustained. Crl.R.P.No.175/2001 5 Point No.III 11. So far as sentence awarded under Section 304 A of the Code is concerned, appellate court has taken a lenient view and reduced the rigorous imprisonment to six months from one year awarded by trial court. There is no justification in taking any further lenient view in the matter. Resultantly, revision petition is allowed in part in the following lines:- 1. Conviction and sentence imposed on the revision petitioner including disqualification for driving vehicle under the provisions of Motor Vehicles Act are set aside and revision petitioner is acquitted of those charges. 2. Conviction and sentence imposed on the revision petitioner under Sections 279, 337 and 304 A of the Code as modified by the appellate court is confirmed. 3. Bail bond is cancelled. Crl.M.P.No.747 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.175/2001 6 Thomas P.Joseph, J. Crl.R.P.No.175 of 2001 ORDER 25th September, 2008