IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 Crl.Rev.Pet.No. 803 of 1998() ----------------------------- CRA.191/1997 of III ADDL.SESSIONS COURT, ERNAKULAM CC.283/1994 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- BAVA, S/o. MOIDEEN, HOUSE No.11/223, VALIYAPARAMBIL VEETTIL, SOUTH THAMARAPARAMBU, FORT COCHIN. BY ADV. SRI.V.K. HAMZA SRI.V.B.NARAYANAN SMT.SABINA AZIZ 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 08/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.R.P.No.803 of 1998 ========================== Dated this the 8th day of February, 2008 ORDER Petitioner was tried for offences punishable under Section 279 and 304(A) of the Indian Penal Code. The trial court found him guilty of the offences and he was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default, to undergo simple imprisonment for two months for the offence punishable under Section 304(A) I.P.C. He was also sentenced to undergo simple imprisonment for three months for the offence punishable under Section 279 I.P.C. Petitioner's licence was suspended for one year. It was further directed that sentences shall run concurrently. The petitioner had unsuccessfully challenged the above order of conviction and sentence before the sessions court. 2. The prosecution case in brief was that, on January 15,1993, at about 11 a.m. petitioner had driven a motorcycle bearing registration No.KL-7-B/5901 on the Fort Kochi- Kunnumpuram road (north to south) in a rash and negligent Crl.R.P.No.803/1998 2 manner and at a very high speed and hit deceased Vincent who was standing on the western portion of the said tarred road. The accident had occurred at Chirattappalam junction about 1.21 meters towards east from the western tarred end. Due to the impact of the hit, deceased Vincent was thrown on to the road and sustained injuries on his head. Vincent succumbed to the injuries on January 21,1993 on the sixth day after the incident. Ext.P17 post mortem certificate revealed that death was due to the head injuries sustained by the victim. 3. The prosecution examined PWs 1 to 12 and Exts.P1 to P17 were marked. DW1 was examined on the side of the defence. 4. The learned Magistrate found that the evidence of PW2 who was an eye witness to the accident and who was sitting in the bunk shop on the eastern side of the road was totally believable. PW1, the son of the accused, who was the pillion rider at the time of the accident did not support the prosecution. PW3 who was cited as another eye witness, had also refused to support the prosecution case. But still, the learned Magistrate after a careful evaluation of the oral and documentary evidence Crl.R.P.No.803/1998 3 on record entered the finding that the prosecution had succeeded to establish the charge levelled against the petitioner. The learned Sessions Judge who re-evaluated the entire oral and documentary evidence found that the findings entered by the trial court was eminently justifiable and valid. 5. Learned counsel for the petitioner has taken me through the oral testimonies of the relevant witnesses. I have also perused Ext.P7 mahazer and Ext.P17 post mortem certificate. It is contended on behalf of the petitioner that the motorcycle had never hit the victim as alleged by the prosecution. According to the learned counsel, the victim had collapsed and fallen down in the middle of the road while he was trying to cross the road. The accused had, as a good Samaritan, taken the victim to the hospital. But curiously, such a case was not advanced by the accused even as a suggestion to PW2 who was the prime witness for the prosecution. He did not take up such a defence when he was questioned under Section 313 Cr.P.C. also. 6. A perusal of Ext.P17 post mortem certificate will reveal that the victim had sustained injuries at the back of his Crl.R.P.No.803/1998 4 head, at the outer portion of the left knee joint and also on the outer portion of his right shoulder. If the theory put forth by the petitioner is to be believed, necessarily some explanation is due from him as to how the victim could have sustained injuries on the outer part of the left knee joint, leave alone the injury at the back of the head. As mentioned earlier the victim had succumbed to the internal injury sustained by him in his head. 7. Learned counsel for the petitioner also made an attempt to bring into focus certain minor contradictions in the deposition of PW2. The attempt appears to be to highlight the fact that PW2 being an old man and wearing glasses, he could not have seen the accident. It has to be remembered that the accident took place at 11 a.m. The road was partially deserted. PW2 stated that he could see up to a distance of more than 50 feet. According to him the accident took place at a distance of about 25 to 30 feet. 8. It is further pointed out by the learned counsel that the bunk shop of PW2 had not been mentioned in Ext.P7 mahazer. I do not find any significance of relevance for the above contention. In my view the evidence of PW2 is totally Crl.R.P.No.803/1998 5 credit worthy. The courts below had accepted the testimony given by PW2. I am not inclined to re-appreciate the evidence yet again especially in view of the fact that I do not find any material illegality or irregularity in the findings entered by the court below. Thus, there is no merit in the revision petition. 9. But it is brought to my notice that petitioner is now aged about 70 years and he is a chronic diabetic and heart patient. Accident had occurred in the year 1993. Having regard to the totality of facts and circumstances, I am satisfied that the petitioner is entitled to get a lenient treatment in the matter of sentence. Therefore, the substantial sentence of imprisonment imposed on him under Sections 279 and 304(A) I.P.C shall stand set aside. 10. Petitioner shall suffer imprisonment for one day and pay a fine of Rs.1,000/- under Section 279 I.P.C. In default of payment of fine he shall suffer simple imprisonment for one month under Section 304(A) I.P.C, petitioner shall suffer imprisonment for one day and pay Rs.25,000/- as fine and in default of payment, he shall suffer simple imprisonment for six months. On realisation of the fine amount the legal heirs of Crl.R.P.No.803/1998 6 deceased Vincent shall be paid Rs.20,000/-. The substantive sentence of imprisonment for one day each under the two counts shall be concurrent. 11. Petitioner shall appear before the trial court on March 31, 2008. On his appearance, learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on that day. If the petitioner fails to pay the fine amounts as indicated above, the default sentence shall be executed. The revision petition is disposed of as above. A.K.BASHEER,JUDGE dvs