IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 Crl.Rev.Pet.No. 577 of 2001() ----------------------------- CRA.19/1996 of ADDL.SESSIONS COURT, KOTTAYAM CC.155/1993 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): ----------------------------------- MOHANDAS, S/O. PURUSHOTHAMAN, KONGINIPARAMBIL HOUSE, CHANNANIKKADU KARA, PANACHICKADU VILLAGE. BY ADV. SRI.P.RAVINDRA BABU SRI.SURIN GEORGE IPE SRI.SURESH BABU THOMAS RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PAMPADY POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M. KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/6/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2730 OF 2001 IN CRL.R.P.NO.577 OF 2001: CLOSED 16/6/2009 SD/- R. BASANT, JUDGE. //TRUE COPY// R. BASANT, J. ------------------------------------------------- Crl.R.P. No.577 of 2001 ------------------------------------------------- Dated this the 16th day of June, 2009 ORDER The Petitioner/accused assails a concurrent verdict of guilty, conviction and sentence in a prosecution under Sections 279 and 304A IPC. He faces a sentence of rigorous imprisonment for a period of three months under Section 279 IPC and rigorous imprisonment for a period of six months under Section 304A IPC. No sentence of fine has been imposed. 2. The crux of the allegation against the petitioner is that on 05.10.1990 at about 8.45 p.m, he drove vehicle No.KRO 7598 along a broad public road from east towards west in a rash and negligent manner. On account of the rash and negligent manner in which the vehicle was driven by the petitioner, the vehicle strayed to the wrong side of the road, i.e., to the north and knocked down the deceased who along Crl.R.P. No.577 of 2001 -: 2 :- with P.Ws. 1 to 3 had reached the spot in a car and after taking food from a nearby shop was allegedly walking along the road on the northern side to proceed to a shop to purchase cigarette. The deceased succumbed to his injuries at the spot of the accident and immediately thereafter his brother P.W.2 went to the police station and lodged Ext.P1 First Information Statement. A graphic narration of the accident is available in Ext.P1. It was specifically alleged that after the incident the accused got out of the vehicle, looked backwards and thereafter took to his heels. Ext.P1 – First Information Statement was lodged by P.W.2 on the basis of which Ext.P8 FIR was registered by P.W.8. Investigation was conducted and the final report was submitted by P.W.6 – Circle Inspector of Police. 3. Cognizance was taken by the learned Magistrate. The accused denied the offences alleged against him. Thereupon, the prosecution examined P.Ws.1 to 8 and proved Exts.P1 to P8. P.W.1 is the driver of the car. He spoke about the circumstances under which he along with the deceased, P.W.2 and P.W.3 reached the scene of the occurrence. The deceased was taken to a Doctor in the tourist taxi driven by P.W.1. They had returned from the Doctor and had stopped the car on the northern side of the road to proceed to a hotel to have their food. Crl.R.P. No.577 of 2001 -: 3 :- Thereafter, they had come back to the car and were standing on the southern side of the car; but the deceased at that point of time proceeded to a nearby shop towards west to purchase cigarette. It was then that the vehicle driven by the accused came from the east and hit against the deceased on the northern side of the road. P.W.1 was declared hostile as he did not support the prosecution case fully. P.W.2 the elder brother of the deceased and an eye witness also supported the prosecution case in toto. P.W.3 was declared hostile; but his evidence shows that he was also present at the scene of the crime and had witnessed the incident. P.W.4 is the registered owner. Ext.P5 is the letter written by him to the Sub Inspector of Police to confirm that the petitioner was the driver engaged by him on the relevant date. P.W.5 had got the accused released on bail. He had also got released the load of rubber which was being carried in the vehicle. The vehicle was abandoned at the scene of the crime. P.W.6 as stated earlier conducted the investigation. P.W.7 is the Doctor who conducted the post- mortem examination and issued Ext.P7 post-mortem certificate. P.W.8 as stated earlier had registered Ext.P8 on the basis of Ext.P1 – First Information Statement. 4. After the close of the prosecution case, the accused was Crl.R.P. No.577 of 2001 -: 4 :- examined under Sec.313 Cr.P.C. He denied the offences alleged against him completely. According to him, he was not the driver of the vehicle at the relevant time. He had come to know that the deceased was mentally unsound and had run across the road from the car when the accident took place. No defence evidence was adduced. 5. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all the ingredients of the offences punishable under Sec.304A and 279 IPC. Accordingly, they proceeded to pass the impugned concurrent judgments. 6. The petitioner claims to be aggrieved by the impugned concurrent verdict of guilty, conviction and sentence. The learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned concurrent verdict of guilty, conviction and sentence on the following grounds: (i) The courts below ought to have held that there is no satisfactory evidence to establish the identity of the driver of the vehicle. (ii) At any rate, the courts below ought to have held that Crl.R.P. No.577 of 2001 -: 5 :- the accident occurred not on account of rashness or negligence on the part of the petitioner. (iii) The sentence imposed is excessive. 7. The evidence of P.Ws.1 to 3 read along with Ext.P1 gives the court a fairly clear idea about the nature of the accident. The road at the scene of the crime has a width of 6.43 Mtrs. Sufficiently broad road margins are there on both sides. The accused was driving his vehicle from east towards west. Except the evidence of P.W.2 there is no better evidence to establish the identity of the accused. But, according to me, there was no reason for the courts below to disbelieve the evidence of P.W.2. The evidence indicates that he had an opportunity to see and identify the driver. The oral evidence of P.Ws.1 to 3 clearly suggest that the accident had taken place in the manner alleged by the prosecution. The evidence of P.W.2 read along with the evidence of P.W.4 and Ext.P5 letter clearly show that the petitioner was the driver of the vehicle at the relevant time. Ext.P3 G.V.R. seized by the police also confirms this fact. I have no semblance of doubt in my mind that the case of the prosecution that the petitioner was the driver of the vehicle on the relevant time can be accepted. 8. About the cause of accident, we have the evidence of Crl.R.P. No.577 of 2001 -: 6 :- P.W.2 supported eminently by the contemporaneous FIS record. The accident took place at 8.45 p.m. The FIS is lodged at the police station situated 300 Mtrs. away within a period of 15 minutes. The version in Ext.P1 clinchingly supports the version of P.W.2 in court. The hostility of P.Ws.1 and 3 notwithstanding we have satisfactory indications in their evidence also to draw inspiration for the oral evidence of P.W.2. 9. The accident does speak for itself considerably. The petitioner was expected to drive his lorry along the fairly broad road along the left hand side of the road i.e., the southern half. But the evidence clearly shows that the accident had taken place on the wrong side of the road i.e., the northern half of the road. Of course the spot of impact was located at a distance of 1.37 Mtrs. to the south of the northern kerb. According to me, that circumstance does not at all show that the version of P.W.2 is not acceptable. The deceased was walking along the northern side of the road. The indications suggest that he had started from point on the southern side of the car which was parked. That explains the gap between the northern road margin and the spot of impact. The location of the vehicle after the accident, the tyre marks etc., at the scene of the accident clinchingly suggest the acceptability of the evidence of P.W.2 that there was rashness Crl.R.P. No.577 of 2001 -: 7 :- and negligence. I am satisfied, in these circumstances, that the theory of prosecution about the rashness and negligence are clearly established. 10. The petitioner has a case that the deceased was mentally unsound and had run across the road. This remains in the realm of a fanciful theory and an unsubstantiated suggestion. There is not a semblance of data to suggest that the deceased was mentally unsound. The evidence indicates that he was employed in the Police Department and had retired on superannuation. He is shown to be aged 57 years. Though suggestions are thrown at P.Ws.1 and 3 that the deceased was a person of unsound mind, P.W.3, though hostile, has stoutly resisted this suggestion. There is nothing to indicate even remotely that the deceased had any such mental ailment as to suggest that he had run across the road. The challenge under the second ground must also hence fail. 11. Lastly and finally, the learned counsel for the petitioner submits that the sentence imposed is excessive. The nature of the culpable conduct is revealed clearly in the scene mahazar extracted in Ext.P2 inquest report. I am not at all persuaded to agree that this is a fit case where a substantive sentence of imprisonment deserves to be avoided. At the same time, I find Crl.R.P. No.577 of 2001 -: 8 :- merit in the submission of the learned counsel for the petitioner that the passage of a period of about two decades after the accident can be taken into account. Taking the totality of circumstances into account, I am satisfied that while a substantive sentence of imprisonment deserves to be imposed, the passage of time can persuade the court to reduce the substantive sentence of imprisonment. The courts below have not imposed any sentence of fine. I am further satisfied that the imposition of the maximum sentence with fine permissible for the offences under Secs.279 and 304A IPC can be imposed while reducing the substantive sentence of imprisonment. The challenge in this revision petition can succeed only to the above extent. 12. In the result: (a) This Crl.R.P is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Sections 279 and 304A IPC are upheld; (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the court below, he is sentenced to undergo simple imprisonment for a period of one month under Sec.279 IPC and three months under Sec.304A IPC. The substantive sentences of imprisonment Crl.R.P. No.577 of 2001 -: 9 :- shall run concurrently. In addition, the petitioner is sentenced to pay a fine of Rs.1,000/- under Sec.279 IPC and Rs.5,000/- under Sec.304A IPC. In default, the petitioner shall undergo simple imprisonment for a further period of 30 days and 3 months respectively. 13. The petitioner shall have time till 31/7/09 to appear before the learned Magistrate and to suffer the modified sentence hereby imposed. The modified sentence hereby imposed shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date for execution of the modified sentence hereby imposed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No.577 of 2001 -: 10 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.577 of 2001 ------------------------------------------------- Dated this the 16th day of June, 2009 ORDER