IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH OCTOBER, 2009 / 4TH KARTHIKA ,1931 Crl.Rev.Pet.No. 247 of 2001 (CRA.146/1996 of ADDL.SESSIONS COURT, THALASSERY CC.343/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR) .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- A.MONAPPA, S/O.ANNAPPA, AMBALAKKAL HOUSE, KEERAPPADI, SULLIYA TALUK, KARANATAKA STATE. BY ADV. SRI.K.V.SOHAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE, S.H.O.KANNUR POLICE STATION, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 247 of 2001 - A --------------------------------------------- Dated this the 26th day of October, 2009 O R D E R In this revision petition, the sole accused in Crime No.338 of 1991 of the Kannur Town Police Station, registered for the offences punishable under Sections 279,337,338 and 304A of the Indian Penal Code (for short 'the IPC'), challenges the concurrent finding of the courts below and the conviction and sentence imposed against him. 2. The prosecution case is that on 8.6.1991, at about 9.45 hours, in the night, on Kannur-Thalassery road near 'Indira Auto Fuels', Petrol Pump at Thana, a lorry bearing Regn.No.CNO 8976, which was driven by the revision petitioner/accused towards Kannur, hit against a maruti car TAR 3839 which was coming from opposite direction and as a result of the collision, two persons, viz.,Premanandan and Jaychandran, who were sitting in the front side of the car sustained grave CRRP NO.247 OF 2001 :-2-: injuries and as a result of the same, they died. Thus, according to the prosecution, the accident had taken place due to the rash and negligent driving of the accused and thus, he had committed offences punishable under Sections 279,337,338 and 304 A of the I.P.C. 3. During trial, the prosecution has examined Pws.1 to 16 and produced Exts.P1 to P19 documents to substantiate its allegation. The defence denied the entire charge. Finally, by judgment dated 13.5.1996 in C.C.No.343 of 1993, the Judicial First Class Magistrate Court-II, Kannur convicted the revision petitioner under the above offences and sentenced him to undergo six months rigorous imprisonment for the offence under Section 279 of I.P.C., simple imprisonment for one month under Section 337 of I.P.C., simple imprisonment for six months under Section 338 of I.P.C. and rigorous imprisonment for two years under Section 304A I.P.C. and it was specifically ordered that the sentence should CRRP NO.247 OF 2001 :-3-: run consecutively. 4. Aggrieved by the judgment of the trial court, the revision petitioner/accused preferred Crl.A.No.146 of 1996 before the Sessions Court, Thalassery and by judgment dated 30.9.2000, the Additional Sessions Court, Thalassery confirmed the order of conviction passed by the trial court and also no interference was made with respect to the sentence of imprisonment, but modified the direction of the trial court to run the sentence consecutively and ordered that the sentence shall run concurrently. It is the above findings, order of conviction and sentence challenged by the accused in this revision petition. 5. I have heard Mr.Sohan, learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. 6. The learned counsel emphatically submitted that the prosecution has miserably failed to establish the CRRP NO.247 OF 2001 :-4-: identity of the accused by adducing cogent evidence and also submitted that there is no evidence to substantiate the allegation of the prosecution that the accident had taken place due to the rash and negligent driving of the revision petitioner/accused. The learned Public Prosecutor submits that the above two issues were elaborately considered by the courts below and concurrently found that the revision petitioner/accused is the sole responsible person for the accident because of his rash and negligent driving and his identity was fully established as per the evidence on record. 7. Regarding the identity of the accused, the learned counsel for the petitioner submitted that even the trial court did not accept the evidence of PW1, but accepted the prosecution case that it was the accused who drove the vehicle at the relevant time. It is also the case of the counsel that as PW1 was sitting in back seat of the maruti car, it was impossible for him to see the CRRP NO.247 OF 2001 :-5-: driver of the vehicle, which was comparatively a larger vehicle and especially during the night, PW1 cannot identify the accused as the driver of the vehicle. PW1 is none other than an Officer who was working in the Police Department and he had categorically stated during his examination that he could see the accused before the accident and nothing brought to disbelieve that version. PW2 had also stated that he had seen the accused at the time or immediately after the incident. The prosecution has also produced Ext.P14 letter issued by PW5, the owner of the lorry to PW16 stating that the accused was the driver of the vehicle at the relevant time. Besides the above documentary evidence, Ext.P7 G.V.R. was also there which was produced by the accused. In the light of the above evidence of the witnesses and the documentary evidence, I am unable to accept the argument of the learned counsel regarding the identity of the accused, especially when the lower CRRP NO.247 OF 2001 :-6-: court has come into a specific finding regarding the identity of the accused based upon the above material. 8. The next point argued by the learned counsel for the revision petitioner is that the prosecution failed to establish that the accident had taken place due to the rash and negligent driving of the revision petitioner/accused. According to the learned counsel, there is no eye witness to the incident. It is pointed out by the learned counsel that to prove the above aspect of the case, the trial court as well as the appellate court mainly relied upon the evidence of PW2, the nearby tea shop owner. He took me through the deposition of PW2 and learned counsel submits that even according to PW2, he heard the sound of collision between the vehicles when he had gone out from his tea shop through the back door for taking bath. Thus, he had no occasion to see the incident. It is to be noted that PW1, the injured witness, who was one among the passengers in CRRP NO.247 OF 2001 :-7-: the maruti car at the time of accident, had categorically deposed as to how the incident had taken place. PW2 had also stated that he had seen the incident and he had deposed the lie of the vehicles immediately after the incident. I have already perused the depositions of Pws.1 and 2 and the documentary evidence. The versions given by Pws.1 and 2 regarding the cause of the accident are fully supported by the contemporaneous documentary evidences such as Ext.P4 scene mahazar and Ext.P5 site plan. From the available materials, it can be seen that the maruti car was proceeding towards the eastern side along the Kannur-Thalassery road and the car was proceeding on its right side viz., on the northern side of the road. As evidenced by Exts.P4 and P5, the accident has taken place on the northern half of the road which was lying in the west-east direction. From the above facts itself, it is sufficient to hold that the accused was driving the vehicle in a wrong position. CRRP NO.247 OF 2001 :-8-: According to the learned counsel, the prosecution deliberately shifted the place of accident and also the lie of the road. But, to substantiate the above contention, no evidence was adduced and nothing is brought on record. As per Ext.P4 scene mahazar and Ext.P5 site plan, the place of occurrence is seen located towards the northern half of the road and the damaged car was found on the northern road margin facing towards south. It is also borne out from Ext.P4 that the lorry was seen on the northern side of the road facing towards the west. Similarly, another bus was found in the parking ground of the petrol pump on the right front side of the lorry. Therefore, the case of the prosecution that after the lorry hit against the maruti car, it hit against the bus, seems to be correct. Therefore, the prosecution has succeeded in establishing the allegation that the accident had taken place due to the rash and negligent driving of the revision petitioner/accused. The above CRRP NO.247 OF 2001 :-9-: findings of the trial court as well as the appellate court are fully supported by the materials and evidence on record and I find no reason to deviate from the above finding and to take a different view. Therefore, the orders of conviction of the courts below are confirmed. 9. Learned counsel for the petitioner submits that some leniency may be shown with respect to the sentence. As a result of the rash and negligent driving of the petitioner, two lives were lost. But, the prosecution has no case that the accused is involved in any other similar case and no previous conviction is proved. At the time of the accident, the revision petitioner was at the age of 31 and now he is at the age of 44. Considering the above facts, I am of the view that some leniency can be shown with respect to the sentence awarded against the petitioner and accordingly, the sentence imposed under Section 304A of I.P.C. can be reduced to 18 months instead of two CRRP NO.247 OF 2001 :-10-: years. Thus, while confirming the convictions under Sections 279,337,338 and 304 A I.P.C., the sentences under the above heads except 304 A I.P.C. are also confirmed and the sentence under Section 304 A of I.P.C. is reduced and refixed as 18 months instead of two years. All sentences shall run concurrently. The bail bond, if any, executed by the petitioner shall stand cancelled. The petitioner is directed to surrender before the trial court on 10.12.2009, in case no sitting on that date, on the next sitting date of that court, to receive the sentence. This Crl.Revision Petition is disposed of with the above modification with respect to the sentence under Section 304 A I.P.C. V.K.Mohanan, Judge MBS/ CRRP NO.247 OF 2001 :-11-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. 247 OF 2001 -------------------------------------------- O R D E R DATED: 26-10-2009 CRRP NO.247 OF 2001 :-12-: