IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No.1495 of 2001 --------------------------------- CRA.21/1996 of ADDL.SESSIONS COURT, KOTTAYAM CC.158/1994 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------- ASHRAF, S/O ABDUL KHADER, CHUMKATHILVEEDU, THETTAIKADAVU BHAGOM, KUTTAPUZHA, THIRUVALLA TALUK. BY ADV. SRI.P.RAVINDRA BABU SRI.JAI GEORGE RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOTTAYAM. PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. R. P. No.1495 of 2001 ------------------------------------------------ Dated this the 25th day of May, 2009 ORDER The accused convicted for offence under Sections 279, 337 and 304(A) IPC as also under Section 134(a) and (b) of M.V. Act read with Section 187 thereof and Section 3(1) of the M.V. Act read with Section 181 thereof is the petitioner before me. He was charge sheeted by the Circle Inspector of Police, Changanacherry in Crime No.432/90 of his police station for the aforesaid offences on the allegation that at about 8.00 a.m on 09/07/90 he drove tempo van bearing registration No.KRA-7266 in a rash and negligent manner so as to endanger human life along the Changanacherry-Kaviyoor public road and caused the said vehicle to hit against CWs.1 to 4 and deceased Aji who were standing by the side of the road near the house bearing door No.XI/166 of Trikodithanam Crl. R. P. No.1495 of 2001 -2- Village and thereafter the tempo rammed into the nearby shop owned by CW5 resulting in injuries being caused to CWs.1 to 4 as also to Aji who succumbed to the injuries later and caused damage to the shop of CW5. It is also alleged that the petitioner did not render any medical assistance to the injured nor did he report the accident at the nearest police station and further that he was not having a valid driving licence at the time of the occurrence. 2. The learned Judicial Magistrate, Kanjirappally before whom the final report was laid, registered the case as C.C.158/94 on the file of his court and as the petitioner/ accused pleaded not guilty, a trial of the case was conducted. Considering the evidence adduced in the case, the learned Magistrate found the petitioner/accused guilty of all the offences with which he stood charged; Crl. R. P. No.1495 of 2001 -3- convicted him thereunder and sentenced him to undergo R.I. for a term of six months for offence under Section 279 IPC; to R.I. for a further term of six months for offence under Section 337 IPC and to R.I. for one year for offence under Section 304(A) IPC with benefit of concurrency. He was further sentenced to pay a fine of Rs.500/- and in default to undergo simple imprisonment for seven days for offence under Section 134(a) read with Section 187 of the M.V. Act; to pay a fine of Rs.500/- and in default to undergo simple imprisonment for seven days for offence under Section 134 (b) read with Section 187 of the M.V. Act and to pay a fine of Rs.500/- and in default to simple imprisonment for seven days for offence under Section 3(1) read with Section 181 of the M.V. Act. He was further disqualified for a period of one year from the date of expiry of the sentences aforesaid from holding any Crl. R. P. No.1495 of 2001 -4- driving licence to drive any class of vehicle under Section 20 of the M.V. Act. 3. The conviction and sentence so entered into by the learned Magistrate was confirmed in appeal by the Sessions Judge, Kottayam in Crl. Appeal.21/96 and hence, this revision. 4. The learned counsel for the petitioner has advanced vehement arguments before me contending that there is no convincing evidence to establish that the petitioner was driving the tempo van in a rash and negligent manner so as to endanger human life or even to the effect that he was the driver of the vehicle at the time of the accident taking place and that the conviction of the petitioner concurrently by the courts below, in the circumstances is unsustainable. He has taken me through the entire evidence in the case to his satisfaction. Crl. R. P. No.1495 of 2001 -5- 5. PW1 who is an injured in the occurrence while standing in front of the bunk shop of Raghavan to purchase beedi has deposed that he had stated to the police that a tempo van hit him down; that five persons sustained injuries in the occurrence and one Aji aged 12 years who sustained injuries succumbed to the injuries; that Raghavan's shop is by the side of the road and that the occurrence took place as the vehicle lost control and that it is on account of the mistake of the driver of the vehicle. PW1 is not cross examined at all by the defence and his testimony stands unchallenged. 6. PW2 is also another person who has sustained injury while standing in front of the shop of Raghavan situated by the side of Changanacherry-Kaviyoor road. PW3/Raghavan has deposed that his bunk shop fell down in the occurrence which has taken place at 8.00 a.m Crl. R. P. No.1495 of 2001 -6- on 09/07/90; that his shop was on the western side of the Changanacherry-Kaviyoor road, but he has not supported the prosecution in any other manner and stated that he does not know the driver of the tempo van involved in the accident. 7. PW4 has stated in Chief Examination that the accused was driving the vehicle involved in the accident and that he has stated to the police the cause of the accident as the carelessness in the driving and that he knows the name of the accused. It has come out from his testimony in cross examination that the vehicle involved in the accident was coming towards the shop of Raghavan having lost all control; that he saw the vehicle from a distance of 50 feet and that it was then coming through the un-tarred portion of the road and that the vehicle stopped after the occurrence only after a few meters though Crl. R. P. No.1495 of 2001 -7- however, he was unable to say the vehicle number or as to whether how many persons were there in the tempo. There was no successful cross examination assailing the identity of the accused. 8. PW5 has deposed that the tempo van bearing registration No.KRA-7266 which was proceeding from South to North hit against the persons who were standing there including himself; against his cycle as also to the bunk shop that he has stated that to the police and that what he so stated to the police is true and correct. He has further stated that the accused was driving the tempo van then and that it was his carelessness that has paved the way for the accident. He has also stated that the vehicle was being driven at a very high speed and in a careless manner. In cross examination, however, he has stated that he gave statement as aforesaid also on the basis Crl. R. P. No.1495 of 2001 -8- of informations furnished by those who were standing with him. 9. PW6 has stated that while he was standing in front of the shop of Raghavan along with four others the tempo van involved in the accident was coming from South to North; that it hit down himself and four others and he also sustained injuries and the vehicle was stopped a little away towards east. He identified the driver and also deposed that the cause of accident is on account of the accused himself. He has stated in cross examination that he saw the driver of the tempo van taking to his heels after stopping the vehicle 5 to 6 metres towards north from the scene of occurrence getting down, opening the door on the right side of the tempo van. He further stated that he saw the accused again at the police station after two or three days of the occurrence; that Crl. R. P. No.1495 of 2001 -9- initially some other person was pointed out to him and he was asked to identify, but then that was not the person; that he gave the description of the driver who took to his heels and the police on the 12th showed him another person and then he identified him as the driver. 10. PW7 who was travelling in the tempo van for taking load of fish from Changanacherry in the tempo van of the accused has stated categorically that it was the accused who was driving the tempo van at the time of the occurrence. In cross examination the attempt made to assail his version is only as to whether he was not giving evidence that the accused was driving the tempo van being afraid of Vijayappan and the witness has denied the suggestion. 11. PW8 who was accompanying PW7 in the tempo van for the purchase of load of fish Crl. R. P. No.1495 of 2001 -10- from Changanacherry has also stated that the tempo van was being driven by the petitioner/accused asserting that he is sure that the accused was driving the vehicle at the time of the accident. He further stated that the accident has occurred on account of the carelessness of the accused. In cross examination he has further stated that while boarding into the tempo he has observed that the tempo was being driven by the petitioner/accused himself. 12. PW14 was yet another person who was travelling in the tempo van for the purpose of taking load of fish from Changanacherry. According to him, the tempo van went off the road while giving side to an autorikshaw. He was declared hostile and cross examined by the Prosecutor and he has deposed that only the accused will know the manner in which the vehicle was driven and that he is not aware as Crl. R. P. No.1495 of 2001 -11- to whether the accused was negligent and what paved the way for the accident taking place. 13. PW15 is the owner of tempo van bearing registration No.KRA-7266 involved in the accident. He has deposed that the petitioner/accused is the driver of his tempo van having been engaged by him and that even on the date of occurrence he was entrusting the vehicle with him for conducting trips. 14. The accused when questioned with reference to the incriminating evidence that has come on record during trial, has stated in answer to all questions that it is not correct. When he was asked as to whether he has got anything else to say, his answer was that he has nothing else to say. If at all he had got a case that he was not the driver of the vehicle at the time of the accident taking place or that the accident has taken place under circumstances which could not be avoided Crl. R. P. No.1495 of 2001 -12- it was up to him to state that and to establish his defence. The evidence tendered in the vehicle inspection report shows that the vehicle was not having any mechanical defect. 15. In the said circumstances and on the evidence discussed by me above the courts below concurrently found that the petitioner is guilty of all the offences with which he stood charged. The conviction of the petitioner in the circumstances is sustainable and there is no incorrectness, illegality or impropriety so as to enable this Court to interfere with the said conviction. 16. The sentence awarded to the petitioner/accused is R.I for six months each for offences under Sections 279 and 337 IPC and R.I for one year for offence under Section 304(A) IPC with benefit of concurrency. Crl. R. P. No.1495 of 2001 -13- 17. It is worthy to note that the petitioner is a professional driver of a goods vehicle and he has driven the vehicle in a rash and negligent manner giving scant regard to the life and safety of others using the public road. Counsel for the petitioner however, pleads that this is the first accident that has taken place at the hands of the petitioner and that the sentence for offence under Section 304(A) IPC be reduced. 18. Considering the entire circumstances of the case, I am of the view that R.I for six months would be sufficient punishment for offence under Section 304(A) IPC as well. 19. In the result, confirming the conviction of the petitioner concurrently by the courts below for all the offences with which he stood charged I reduce the sentence of R.I. granted to the petitioner under Section 304A IPC from one year to six months, Crl. R. P. No.1495 of 2001 -14- no doubt, with benefit of concurrency as allowed by the courts below. In all other respects this Crl. R. P. is dismissed. K.P.BALACHANDRAN, JUDGE kns/-