IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 156 of 2001() ----------------------------- CRA.238/1994 of SESSIONS COURT, MANJERI CC.179/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- POOLAKKAL DAMODARAN, AGED 33 YEARS, S/O. NARAYANAN, KOTTAKKAL, PUTHUR. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAI GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 156 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008 ORDER Petitioner was tried for the offence punishable under Section 279 and 304A of the Indian Penal Code on the charge that due to his rash and negligent driving, a 5 year old child lost his life in a motor accident. The trial court convicted and sentenced the petitioner to undergo simple imprisonment for 3 months for the offence under section 279 IPC and for simple imprisonment for one year for the offence under Section 304 A IPC. The above order of conviction and sentence passed by the trial court was confirmed in appeal by the Sessions Court. 2. The prosecution case in brief was that on October 19, 1993 at about 2.30 p.m. while Pw.5 was walking along the road margin with her child, the jeep driven by the petitioner/accused at a very high speed and in a rash and negligent manner, came and hit the child from behind. The child was thrown to the road due to the impact of the hit and the jeep ran over the child resulting in fatal injuries. The child succumbed to the injuries a little later in the hospital. Pw.2 the sister of Pw.5 was also walking along with Pw.5 and the child, when the gruesome accident occurred. Moreover, Pw.1 who was standing a little away from the scene of occurrence also witnessesd the accident and identified the petitioner as the driver of the offending vehicle. Pw.4 also supported the prosecution case, though Pw.3 who was cited as another independent occurrence witness, did not support the prosecution. Crl.RP.156/2001 2 3. It is contended by learned counsel for the petitioner that the trial court and the appellate court have egregiously erred in relying on the interested testimonies of the witnesses. He further contends that the contractions in the testimonies of the witnesses in the course of their cross examination ought to have been taken note of by the courts below. He also tries to place reliance on Ext.P4 scene mahazar in his attempt to establish the defence case that the accident had occurred when the child suddenly ran across the road. 4. As has been noticed already, the trial court as well as the appellate court have concurrently found the petitioner guilty of the offence alleged against him. I have carefully gone through the well reasoned orders passed by the courts below. I have also heard learned counsel for the petitioner at length and perused the depositions of the witnesses and Ext.P4 scene mahazar. 5. Pw.1 who was working at a building site had deposed before the court that he had seen the incident. It is not disputed before me that the road in question has a width of about 5.6 meters and there is a clear vision from a distance of more than about 250 meters from both sides. According to Pw.1 the petitioner/accused, whom he clearly identified, had driven the vehicle at excessive speed and in a rash and negligent manner. The child was walking along the road margin through the northern side. The vehicle came from west to east. The child was on the right hand side of the mother (Pw.5). The jeep came from behind the child and Pw.5 and hit him from behind. The child was Crl.RP.156/2001 3 thrown off to the road. The jeep ran over the child. The defence could not bring out any significant contradictions from this witness. 6. Pw.2 who was the aunt of the deceased child (sister of Pw.5) deposed before the court that the deceased child was walking on the right hand side of Pw.5 holding her hand. According to Pw.2 she was walking about 5 meters behind the child and Pw.5 when the jeep suddenly came from behind at a high speed and knocked down the child and ran over him. Pw.2 also clearly identified the driver. In fact Pw.2 said that the jeep had come very close to her body also from behind. 7. Pw.5 the mother, asserted before the court that the child was knocked down by the jeep at a very high speed and ran over him because of the rash and negligent driving of the petitioner. She further asserted that she and the child were walking through the road margin. The child was holding her right hand. According to this witness the jeep had stopped after knocking the child about 25 meters away. 8. I do not propose to refer to the evidence of Pw.7, the Motor Vehicle Inspector who inspected the vehicle and the other witnesses, who attested the mahazar, the Doctor who conducted the post mortem etc. The Motor Vehicle Inspector had noticed that there was no mechanical defect for the vehicle and the brakes were also in good condition. 9. As mentioned earlier, the contention raised by the petitioner was that the accident had occurred when the child ran across the road Crl.RP.156/2001 4 to go over to the southern side in order to go to his residence. But significantly petitioner did not dispute or deny the presence of Pw.2 and 5 at the scene of occurrence. The contention of the petitioner was that the lane running in front of the Anganwadi on the southern side of the road leads to the residence of the child and Pws.2 and 5. Therefore when the child reached near that lane he suddenly ran across the road. But Pw.1 , 2 and 5 in no uncertain terms deposed before the court that the jeep had come from behind and hit the child while he was walking along with his mother through the road margin on the northern side. Though some attempt is made by the learned counsel for the petitioner to get some support from Ext.P4 scene mahazar, I am not at all satisfied that the above contention can be sustained. The contention of the petitioner appears to be that the spot marked by Pw.10 investigating officer, as the scene of occurrence will indicate that the child was hit somewhere around on the southern side of the road. But admittedly the Sub Inspector had prepared the scene mahazar on the basis of the information furnished by the local people. Even otherwise on a perusal of Ext.P4 carefully, I am not at all impressed by the above contention raised by the petitioner. The courts below, in my view, were totally justified in relying on the testimonies of Pws.1, 2 and 5. I do not find any material illegality or irregularity in the concurrent finding entered by the courts below. There is no merit in any of the contentions raised by the Crl.RP.156/2001 5 petitioner. The revision petition fails. It is accordingly dismissed. A.K. Basheer Judge. an. Crl.RP.156/2001 6 A.K. Basheer, J. Crl.R.P.No.156 of 2001 ORDER 21st August, 2008