IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 139 of 2002 -------------------------------------------- CRA.252/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.996/1994 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: FAHAD MASHOOR, S/O.HABEEB MASHOOR, HILAL MANZIL, KOYILANDY. BY ADV. SRI.FAHAD MASHOOR(PARTY IN PERSON) RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.139 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.996/2004 on the file of Judicial First Class Magistrate's Court-IV, Kozhikode, filed this revision challenging the conviction and sentence for the offences under Sections 338 and 279 of Indian Penal Code, as confirmed by the learned Additional Sessions Judge, Kozhikode in Crl.A.No.252/1999. Prosecution case is that PW2 was riding a bicycle from south to north along Kozhikode-Kannur National Highway on 17.3.1994 at about 5.30 a.m. Petitioner rashly and negligently drove Maruti Van KL-11/8204 from south to north and hit PW2 from behind and as a result, grievous hurt was caused to PW2. He thereby committed the offences under Sections 279 and 338 of Indian Penal Code. 2. Petitioner pleaded not guilty. Prosecution examined ten witnesses and marked Exhibits P1 to CRRP 139/02 2 P7. Petitioner did not adduce any evidence. 3. Learned Magistrate, on the evidence, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months each for the offences. Though petitioner challenged the conviction and sentence before Sessions Court, Kozhikode, learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Learned counsel appearing for the petitioner submitted on 7.7.2010 that he has already relinquished the vakalath. Registry was directed to verify whether any other counsel has filed fresh vakalath and if filed, show the name of the counsel and if not, the party. It is reported that no fresh vakalath is filed. Petitioner is absent. 5. Learned Public Prosecutor was heard and the records were perused. CRRP 139/02 3 6. The fact that PW2 sustained grievous hurt, as proved by the evidence of PW5, the doctor and Exhibit P2 wound certificate, was not challenged at the time of trial. Evidence establish that PW2 sustained grievous hurt. The fact that PW2 was riding a bicycle from south to north along Kozhikode-Kannur National Highway on 17.3.1994 at about 5.30 a.m. is also not disputed. The fact that PW2 sustained injuries when he was hit by a Maruti Van from behind is also not challenged at the time of trial. The only question is whether the incident occurred due to the rash and negligent driving of the Maruti Van by the petitioner and if so, whether the conviction and sentence is legal. 7. PW2, the injured, was taken to Medical College Hospital by PW1 and he was admitted there as an inpatient as he sustained fracture of nasal bone and left femur. The alleged cause of injuries recorded in Exhibit P2 wound certificate is that when a running van hit on PW2 while he was riding a CRRP 139/02 4 bicycle at the western side of the road. Exhibit P1 F.I. Statement was furnished by PW1. Evidence of PW1 is that he was jogging on that morning when the incident occurred. According to PW1, he was proceeding from north to south. He saw PW2 proceeding from south to north in a bicycle. According to PW1, at that time a Maruti Van, driven by the petitioner, came from south to north and hit PW2 from behind. PW2 was thrown on the road sustaining injuries and PW1, along with others, took him to the hospital. Evidence of PW2 is also that he was riding the bicycle from south to north and all of a sudden, a Maruti Van came from behind and hit him. PW3, another eye witness, also deposed the same. Learned Magistrate and learned Additional Sessions Judge appreciated the evidence and found that the evidence of PWs 1 to 3 establish that PW2 sustained grievous hurt when a Maruti Van, driven by the petitioner, hit from behind on the bicycle with PW2 as the rider. CRRP 139/02 5 8. I have gone through the evidence of PWs 1 to 3. The scene mahazar shows that the tarred portion of the road is having a width of 7½ metres. There was western road margin of 1½ metres and eastern road margin of two metres. PW2 was riding a bicycle from south to north. Maruti Van hit on PW2, 15 cms to the east of the western tarred end. It establishes that the bicycle was proceeding along the western side of the road. The evidence establish that the incident was caused solely due to the rash and negligent driving of the petitioner. Evidence of PWs 1 to 3 establish that petitioner was driving the Maruti Van rashly and negligently so as to endanger human life and by such driving hit on PW2 and caused grievous hurt to him. Identity of the petitioner as the driver of Maruti Van cannot be challenged, as the evidence show that petitioner also assisted PW1 to take PW2 to the hospital. In such circumstances, PWs 1 and 3 had sufficient opportunity to identify the driver CRRP 139/02 6 of the Maruti Van. In fact, the identity was not challenged at the time of evidence. Hence, I find no reason to interfere with the finding of the learned Magistrate, as confirmed by the learned Additional Sessions Judge, that petitioner was driving the Maruti Van rashly and negligently so as to endanger human life and by such driving voluntarily caused hurt to PW2. In such circumstances, conviction of the petitioner for the offences under Sections 338 and 279 of Indian Penal Code is perfectly legal. 9. Then the only question is regarding the sentence. Petitioner was sentenced to simple imprisonment for three months each for the offences under Sections 338 and 279 of Indian Penal Code. The incident occurred in 1994. But, considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to simple imprisonment for one month and a compensation of Rs.10,000/- to be paid to PW2 as CRRP 139/02 7 compensation under Section 357(3) of Code of Criminal Procedure and the maximum fine for the offence under Section 279 of Indian Penal Code. Revision is allowed in part. Conviction of the petitioner for the offence under Sections 279 and 338 of Indian Penal Code is confirmed. Sentence is modified. Petitioner is sentenced to a fine of Rs.1,000/- and in default, simple imprisonment for one month for the offence under Section 279 of Indian Penal Code. Petitioner is also sentenced to simple imprisonment for one month and a compensation of Rs.10,000/- to be paid to PW2 as compensation under Section 357(3) of Code of Criminal Procedure for the offence under Section 338 of Indian Penal Code. Judicial First Class Magistrate-IV, Kozhikode is directed to execute the sentence. 3rd August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 139/02 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.139 of 2002 -------------------------- ORDER 3rd August, 2010