IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.REV.PET.NO. 83 OF 2003() ----------------------------------------- CRA.90/1994 OF ADDL.SESSIONS COURT, KOTTAYAM CC.242/1991 OF JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------- ABUBACKER, S/O.KHANYAPPA RAWTHER, PUTHIYAMALIKAYIL VEEDU, VELLOOR VILLAGE AND NOW RESIDING AT PUTHIYAMALIKAYIL HOUSE, THALAPARA, CHEMBALA, THALAYOLAPARAMBU P.O. BY ADV. SRI.JAI GEORGE SRI.V.K.SUNIL RESPONDENT(S) - RESPONDENT: ------------------------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, VAIKOM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.83 of 2003 AND CRL. M.A. NO.6136 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of July, 2009 O R D E R -------------- Courts below concurrently found that petitioner drove a tipper lorry on 22.11.1990 at 12 noon along the place of occurrence in a rash and negligent manner so as to endanger human life and caused that vehicle hit a cycle ridden by P.W.2 resulting in grievous hurt to him. Petitioner was sentenced to undergo rigorous imprisonment for three months under Section 279 and six months under Section 338 of the Indian Penal Code (for short, “the Code”). He preferred an appeal but without success. Hence this revision. 2. Petitioner and P.W.2 have come up with a composition of the offences and sought permission vide Crl.M.A.No.6136 of 2009. I heard learned counsel for petitioner, petitioner No.2 in the application (the injured) and Public Prosecutor. 3. So far as composition reached between the parties is concerned, I am unable to accord sanction since offence under Sec.279 of the Code is not compoundable with or without permission permission of the court though offence under Sec.380 is compoundable with permission. In this case offence under Secs.279 CRL. R.P. No. 83 of 2003 -: 2 :- and 380 are co-related and hence it is not possible to bifurcate permission sought for as in relation to the compoundable offence alone. However, matter of composition will be taken into account in the matter of sentence if this Court is not interfering with the conviction. 4. Case is that on 22.11.1990 when P.W.2 was riding a cycle along the eastern side of the road from north to south, lorry driven by the petitioner came from the opposite direction (south to north) went over to its wrong side and hit P.W.2 who suffered grievous hurt. That, P.W.2 suffered grievous hurt is proved by the evidence of P.W.9 and Exts.P10 and P11. It is proved through the evidence of P.W.5 and Ext.P2 that the accident was not due to any mechanical defect of the lorry. P.Ws.2 to 4 are witnesses to the accident. They supported the prosecution. Evidence of P.Ws.2 to 4 shows that P.W.2 was riding the cycle from north to south along the eastern side of the road. Lorry driven by the petitioner came from south to north. It is also their consistent version that the lorry went over to ts wrong side (eastern side) and hit P.W.2. P.Ws.2 and 3 have identified the petitioner as the driver of the offending vehicle. 5. It is seen that the mahazar for scene of occurrence is not CRL. R.P. No. 83 of 2003 -: 3 :- proved in evidence. Mahazar for scene of occurrence is an important document in cases of this nature. But in this case I am not inclined to interfere with the conviction for not introducing the scene mahazar in evidence since there is oral evidence of P.Ws.2 to 4 which the courts below have accepted and I find no reason to disagree that the accident occurred on the wrong side of the petitioner. Evidence revealed that petitioner was rash and negligent in driving the lorry and that resulted in the accident causing grievous hurt to P.W.2. There is no reason to interfere with the conviction of the petitioner. 6. So far as sentence is concerned I am told that the matter has been settled out of court. Learned counsel for petitioner states that some amount was also given to P.W.2 as compensation apart from compensation awarded by the Motor Accidents Claims Tribunal. In the facts and circumstances I am satisfied that sentence of fine would suffice the ends of justice. Accordingly sentence is modified as fine. Resultantly, this revision is allowed in part setting aside the judgments to the extent it concerned sentence of imprisonment awarded to the petitioner. He is sentenced to pay fine of Rs.1,500/- (Rupees One thousand five hundred only) each under Secs.279 and CRL. R.P. No. 83 of 2003 -: 4 :- 380 of the Code and in case of default, to undergo simple imprisonment for one month each. Petitioner is granted one months' time from this day to deposit the fine in the trial court. In case of default he shall appear in the trial court on 4.8.2009 to receive the sentence. Criminal Miscellaneous Application No.6136 of 200 is closed as unnecessary. Criminal Miscellaneous Petition No.249 of 2003 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.83 OF 2003 AND CRL. M.A. NO.6136 OF 2009 ================== O R D E R 1ST JULY, 2009