IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1253 of 2003() ------------------------------ CRA.693/2001 of ADDL.SESSIONS COURT, PARAVUR CC.636/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------- AJIT P.VARGHESE, S/O.VARGHESE, AGED 30 YEARS, MOOTHEDATHU VEEDU, ALUVA KARA, ALUVA VILLAGE. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.S.K.MOHAMED SAJEER SRI.JAYACHANDRA BABU.K. SRI.ASHIM.M.V. RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI K.J. MUHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1253 of 2003 ------------------------------------------------------ Dated: DECEMBER 8, 2009 ORDER The Revision petitioner is the accused in C.C.636/1996 of Judicial First Class Magistrate Court-I, Aluva and the appellant in Crl.A.693/2001 of Additional Sessions Court, N. Paravur. He was convicted under secs.279 and 304(A) of IPC and was sentenced to undergo simple imprisonment for six months under sec.279 of IPC and to undergo simple imprisonment for one year and to pay a fine of Rs.5000/-, under sec.304(A) of IPC. He was disqualified from holding any driving licence as provided under sec.20(1) of the Motor Vehicles Act for a period of two years. On appeal by the accused, his conviction and sentence were confirmed by the lower appellate court. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on March 26, 1996 at about 7.30 p.m. the accused drove the motor cycle bearing registration No.KL.7/M 858 along the Aluva Sub Jail Road from south to north in a rash and negligent manner so as to endanger human life and knocked down one Shamsudeen who sustained serious injuries and later succumbed to the injuries sustained on March 27, 1996 while undergoing treatment CRL. R.P. 1253 of 2003 2 in the Medical Trust Hospital, Ernakulam and that thereby committed an offence punishable under secs.279 and 304(A) of IPC. 3. The accused on appearance before the learned Magistrate pleaded not guilty to the charge under secs.279 and 304(A) of IPC. P.Ws.1 to 12 were examined and Exts.P1 to P9 were marked on the side of the prosecution. When questioned under sec.313 Cr.P.C., the accused denied having committed any offence. Dws.1 to 5 were examined on his side. 4. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under secs.279 and 304 (A) of IPC., convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the Public Prosecutor. 6. The following points arise for consideration:- I. Whether the accident occurred due to the rash and negligent riding of the motor cycle by the accused? II. Whether the conviction of the revision petitioner under secs.279 and 304(A) of IPC. can be sustained? III. Whether the sentence imposed is excessive or unduly harsh? CRL. R.P. 1253 of 2003 3 Point Nos.I and II 7. The case of the prosecution is that on March 26, 1996 at about 7.30 p.m. the accused drove his motorcycle bearing registration No.KL.7/M 858 along the Aluva Sub Jail Road and knocked down a pedestrian named Shamsudeen who succumbed to the injuries sustained while undergoing treatment at the Medical Trust Hospital, Ernakulam, on the next day. The accident is not disputed. It is also proved by the evidence adduced on the side of the prosecution. It is also admitted that the accused was riding the offending motorcycle at the time of the accident. The main point for consideration is whether the accident occurred due to the rash and negligent driving of the motor cycle by the revision petitioner. Learned counsel for the revision petitioner would argue that it is a very crowded place where the accident took place and that it is not possible to drive a motor cycle at a high speed on that road. He further argued that the deceased suddenly crossed the road along the front side of a bus which was parked there and that despite the earnest efforts on the part of the accused, he was not able to avoid the motorcycle from hitting the deceased. 8. PW.1 is the wife of the deceased. She was present along with the deceased at the time of the accident. She did not identify the accused. But she would say that the motorcycle came at a high speed and knocked down the deceased. She has denied the suggestion that CRL. R.P. 1253 of 2003 4 while herself and the deceased attempted to cross the road along the front of a bus parked there, the accident occurred. Pws.2 and 3 are Traffic Constables on duty there. PW.2 was on duty till 5 p.m. PW.2 witnessed the incident. He supported PW.1 in all material particulars. PW.3 came there on hearing the sound and helped in taking the deceased to the hospital. PW.5 is an attester to inquest report Ext.P1. PW.6 is examined to prove the intimation to police. Ext.P2 is the intimation. PW.7 is the doctor who examined the injured. PW.8 is an attester to the scene mahazar. Pws.9 and 10 are Investigating Officers. PW.11 is the Motor Vehicle inspector who inspected the motorcycle involved in the accident and gave the report Ext.P8. PW.12 is the doctor who conducted postmortem and issued Ext.P9 certificate. 9. It is seen from the scene mahazar Ext.P7 that the spot of the accident was on the wrong side of the motor cycle. PWs.1 and 9 are the alleged eye-witnesses to the accident. They have categorically stated that it was due to the rash and negligent driving of the offending motor cycle that the accident occurred. PW.1 is the wife of the deceased and PW.9 is the Traffic Constable who was on duty nearby. I have gone through their evidence. I find no serious discrepancies in their evidence to discredit their evidence. An attempt was made on the side of the accused by examining Dws.1 to 5 to show that when the victim tried to cross the road the accident occurred. The trial court as well as the lower appellate court rejected their CRL. R.P. 1253 of 2003 5 evidence for convincing and cogent reasons. I find no reason to come to a different conclusion. For all these reasons, in my view, the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that the accident occurred due to the rash and negligent riding of the offending motor cycle by the accused. The conviction of the accused under secs.279 and 304(A) of IPC is therefore confirmed. Point No.III 10. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for one year and a fine of Rs.5000/-, in default to undergo simple imprisonment for three months under sec.304(A) of IPC and to undergo simple imprisonment for six moths under sec.279 of IPC, which is confirmed in appeal. 11. Counsel for the revision petitioner submitted that the accused is abroad and he has two children to look after. Further the incident occurred during 1996. Taking into consideration the above aspects and in the light of the principles laid down in Manish Jalan v. State of Karnataka (2008) 8 SCC 225, I feel that the substantive sentence can be reduced to the period of imprisonment already undergone and a fine of Rs.One lakh, which can be paid as compensation to PW.1, the widow of the deceased, would meet the ends of justice. CRL. R.P. 1253 of 2003 6 In the result the conviction of the revision petitioner under secs.279 and 304(A) of IPC is confirmed. He is sentenced to pay a fine of Rs.500/- under sec.279 of IPC, in default to undergo simple imprisonment for one month. The substantive sentence imposed under sec.304(A) of IPC is reduced to the period of imprisonment already undergone by him i.e. from 20.11.1996 to 23.11.1996. He is also sentenced to pay a fine of Rs.One lakh, in default to undergo simple imprisonment for six months under sec.304(A) of IPC. The fine amount, if realised, shall be paid to PW.1, the widow of the deceased, as compensation as provided under sec.357(1) of Cr.P.C. The order of the trial court disqualifying him from holding any driving licence for two years is vacated. Two months time is granted for payment of fine. He can either pay the amount direct to PW.1 and produce the receipt before the trial court or deposit the amount in the trial court. P.Q. BARKATH ALI, JUDGE CRL.M.A.5160/2003 Dismissed. 8.12.2009. P.Q. BARKATH ALI, JUDGE mt/-