IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 Crl.Rev.Pet.No. 709 of 1999(B) ------------------------------ CRA.111/1997 of ADDL. SESSIONS COURT, THRISSUR CC.242/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- BENNY, S/o.CHEERAN VARRED, NEAR PUTHUSSERY ROAD, CHOONDAL VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI. S.R.MANOJ RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.R.P.Nos.709 of 1999 ========================== Dated this the 29th day of February, 2008 ORDER Petitioner was tried for the offences punishable under Sections 279 and 304 (A) I.P.C. The trial court found him guilty under both counts and convicted and sentenced him to undergo simple imprisonment for three months for the offence under Section 279 I.P.C and simple imprisonment for one year under Section 304 (A) I.P.C. Petitioner was also disqualified from driving a vehicle for three months. It was directed that substantive sentence would run concurrently. In appeal, the learned Sessions Judge confirmed the order of conviction, under both counts. The sentence imposed on the petitioner under Section 279 I.P.C was also confirmed. But the learned Sessions Judge reduced the sentence of one year under Section 304 (A) I.P.C to six months' simple imprisonment. Petitioner challenges the above order passed by the learned Sessions Judge in this revision petition. 2. The prosecution case in brief was that the petitioner/accused had drove Mini lorry bearing registration Crl.R.P.No.709/1999 2 No.KL. 8-C 6462 along Guruvayoor-Choondal road in a rash and negligent manner at an excessive speed and hit against one Simon, resulting in fatal injuries to him. Though Simon was removed to a hospital immediately, he succumbed to the injuries later. The accident had occurred at about 11.45 a.m. on May 6, 1995 at Koonammoochy on the Guruvayoor-Choondal road running west to east in front of the house of PW2. Sri. Simon had crossed the road from the southern side to the north. The lorry had hit Simon about 35 c.m on the south from the northern tar end of the road. Simon was thrown on the untarred portion of the road. The vehicle had stopped about 9 meters away from the place of impact. 3. The prosecution had examined PWs.1 to 10 and Exts.P1 to P10 were marked on his side. There was no oral or documentary evidence of the side of the defence. 4. PWs.2 and 3 were the two eye witnesses, who had seen the accident. Both these witnesses narrated the incident almost in identical manner. They had a consistant and identical version that the Mini lorry, which was being driven from west to east, had hit Simon when he had almost reached the northern Crl.R.P.No.709/1999 3 end of the road. Ext.P2, Scene Mahazer showed that tarred portion of the road had a width of 6.10 meter. As mentioned earlier, the vehicle had hit Simon about 35 c.m away from the northern tar end of the road. These two witnesses asserted that the accused had driven the lorry at an excessive speed and in a rash and negligent manner. The road was straight for about 100 meter at that particular point. There was a junction just ahead of the place of accident. The trial court as well as the Appellate Court accepted the oral testimonies of these two witnesses and it was on the basis of their evidence the court below had concurrently found the petitioner guilty of the offences. 5. Learned counsel for the petitioner made an attempt to contend for the position that there was no proper identification of the accused. But PWs.2 and 3 had categorically stated that they had seen the accused come out of the driver's seat immediately after the accident. Learned counsel raised another contention that one Jose, who was a nearby resident had not been cited as a witness; on the contrary PWs.2 and 3 who are respectively the son-in-law and near relative of deceased Simon, had been examined in the case. This according to him was a Crl.R.P.No.709/1999 4 clear indication that PWs.2 and 3 had been planted as witness for the purpose of the case. But PW2 the son-in-law of Sri.Simon had deposed before the court that he happened to be available at the residence since there was a celebration in connection with his son's baptism on that day. He further stated that the deceased had just stepped out of the house after informing him. He saw that the deceased had almost crossed the road and reached the other side. The vehicle had come through the road at a very high speed and in a rash and negligent manner. PW3, the other eye witness had also narrated the incident in a convincing manner. 6. I do not find any reason to disbelieve these two witnesses. Having carefully perused the oral testimonies of these two witnesses, I am satisfied that the courts below were justified in relying on their evidence. Though the learned counsel has made a passionate and persuasive plea for reducing the sentence, I am not persuaded to accept the above request, since the learned Sessions Judge had shown sufficient indulgence and leniency in that regard. Crl.R.P.No.709/1999 5 There is no merit in the revision petition and it is accordingly dismissed. A.K.BASHEER,JUDGE dvs