IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3322 of 2008() ------------------------------ CRA.122/2005 of ADDL. SESSIONS COURT (ADHOC-II), KASARAGOD CC.362/2001 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- ---------------------------------------- HARISH POOJARI, AGED 36 YEARS, SIDDHANA MANE HOUSE, BIJOOR POST AND VILLAGE, KUNDAPUR, UDUPI. BY ADV. SRI.K.P.HARISH RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3322 OF 2008 ------------------------------------------ Dated this the 2nd day of December, 2008 O R D E R Revision petitioner is the accused in C.C. 362 of 2005 on the file of Chief Judicial Magistrate, Kasaragod. Petitioner was convicted and sentenced for the offence under section 279 and 304 A of Indian Penal Code. Prosecution case was that on 14.2.2001 at about 5 p.m. petitioner was driving lorry KA- 25/7942 along National Highway from Kasaragod side to Manjeswar side in a rash and negligent manner so as to endanger human life in over speed and when it reached near Arikkady junction, due to such rash and negligent driving the lorry hit on the body of deceased Sameera aged 9 years, who was returning home from school by walking through the western side of the road and thereby committed the offences under section 279 and 304 A of Indian Penal Code. Petitioner pleaded not guilty. Prosecution examined 8 witnesses and marked 8 exhibits. On the side of the defence, no evidence was adduced. Learned Chief Judicial Magistrate on appreciation of evidence found the petitioner guilty. He was convicted and sentenced to rigorous imprisonment for two years for the offence under CRRP3322/08 2 section 304 A and 6 months for the offence under section 279 of IPC. Petitioner challenged the conviction before Sessions Court, Kasaragod in Crl. Appeal 122 of 2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction. But the sentence was modified to simple imprisonment for one month and fine of Rs.1,000/- for the offence under section 279 and simple imprisonment for three months and a fine of Rs,5,000/- and in default simple imprisonment for six months for the offence under section 304A of IPC. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that there is absolutely no evidence to prove that petitioner was driving the lorry in a rash and negligent manner so as to endanger human life or caused death of the Sameera due to such negligent driving. It was argued that evidence of PWs 1 and 2 relied by Courts below, should not have been accepted due to the contradictions and improbabilities. It was pointed out that as per evidence of PWs 1 and 2 they were in the shop of one Aboobacker, which is situated 1½ metres in a lower level to the National Highway and it is not possible to witness incident from CRRP3322/08 3 there and therefore for that sole reason their evidence should have been disbelieved. It was also argued that evidence of PW2 shows that he was waiting for the bus at the bus stop and PW1 was there with him and if that be the case, evidence of PW1 that he was reading the newspaper at the shop of Aboobacker should not have been believed and though PW2 made an attempt to clarify that fact by saying that he was at the shop of Aboobacker, that explanation is not believable and Courts below should have disbelieved PWs 1 and 2. Relying on the decision of the Apex Court in Prabhakaran Vs. State of Kerala (2007 (3) KLT 400) it was argued that fact that petitioner was driving the lorry rashly and negligently is to be proved by the prosecution and for the reason that the death of a minor girl was caused, it cannot be presumed that revision petitioner was driving lorry in a rash and negligent manner and caused her death. Learned counsel also argued that the incident occurred not because of the rash and negligent driving of the lorry by the revision petitioner, but because of the deceased minor girl who suddenly crossed the road. Learned counsel finally submitted that the sentence awarded is excessive. 4. On going through the judgments of the Courts below and on hearing the learned counsel I find no reason to interfere CRRP3322/08 4 with the conviction. Ext.P8 scene plan with Ext.P6 scene mahazar establish that the road is lying north-south and the tar road was having a width of 7½ metres and the western road margin was having a width of 1½ metres at the scene. The lorry was proceeding from south to north. The scene of occurrence was one metre to the east of western tar end. Though learned counsel argued that the incident occurred due to the sudden crossing of the road by the girl, there is no supporting evidence. From the evidence it cannot be said that deceased Sameera was crossing the road or attempted to cross at the time of incident. On the other hand evidence establish that she was walking through the western side of the road from south to north. There is no evidence to prove that any other vehicle was coming through that road at that time. When the road is having a width of 7½ metres and there is no vehicle passing along the road at that time, even if the minor girl suddenly crossed the road if the lorry was driven not in a rash or negligent manner or was not in over speed revision petitioner could have avoided the incident by proceeding through the eastern side of the road. Therefore I cannot agree with the submission that incident occurred due to the sudden crossing of the road by deceased Sameera. 5. Though PWs 1 and 2 were cross-examined, nothing CRRP3322/08 5 was brought out to disbelieve their evidence. Argument of the learned counsel is that based on the contradictions of the evidence of PW2, he was waiting at the bus stand. But PW2 had clarified by stating that he was at the shop at the time of incident. Even if that portion of the evidence is to be disbelieved, I find no reason to disbelieve their evidence as such. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and relied on the evidence of PWs 1 and 2 to hold that deceased Sameera was proceeding through the western side of the road and lorry driven by revision petitioner came from south to north in a rash and negligent manner so as to endanger human life and that too in over speed and hit on Sameera and caused her death. The fact that death of Sameera was due to the injuries sustained, when the lorry hit on her as proved by evidence of PWs 1 and 2 and further established by Ext.P2 postmortem certificate and evidence of PW3 the doctor. In the light of the evidence Courts below rightly convicted revision petitioner for the offence under section 279 and 304 A of IPC. Conviction of the petitioner is perfectly legal. 6. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment CRRP3322/08 6 for one month in addition to a fine of Rs.1000/- for the offence under section 279 and simple imprisonment for three months and a fine of Rs.5000/- for the offence under section 304A of IPC. It cannot be said that the sentence of simple imprisonment for three months in addition to a fine of Rs.5000/- for the offence under section 304A of IPC is excessive. I find no reason to interfere with the same. But the default sentence of simple imprisonment for six months, when the substantive sentence is only three months, is illegal and the default sentence is reduced to simple imprisonment for one month. Revision is therefore allowed in part. Conviction of the petitioner for the offence under section 279 and 304A of IPC is confirmed. So also the sentence for the offences under section 279 and 304A of IPC are also confirmed. But the default sentence is reduced to simple imprisonment for one month. M. SASIDHARAN NAMBIAR, JUDGE Okb/-