IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.Rev.Pet.No. 981 of 2001() ----------------------------- CRA.8/1998 of SESSIONS COURT, KOZHIKODE CC.430/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I,QUILANDY .................... REVISION PETITIONER(S): (APPELLANT/ACCUSED): ----------------------------------------------------------------------------- RASHEED, S/O.ABDUL KHADER, NASEEMA MANZIL, VELUR AMSOM, KONGANNUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: --------------------------------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, ATHOLI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA., ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON C.M.P.NO.4657/2001 IN CRRP.NO.981/2001 DISMISSED 14/10/2009 SD/- P.Q.BARKATH ALI, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 981 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 14th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.430 of 1995 of the Judicial Magistrate of the First Class, Quilandy and the appellant in Crl.A.No.8 of 1998 of the Sessions Court, Kozhikode Dovision. He was convicted under sections 279 and 338 IPC and sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two months under section 279 IPC and to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a further period of two months under section 338 IPC. Out of the fine amount, if realized, Rs.1,000/- was ordered to be paid to the son of PWs.1 and 2 as compensation for the grievous injury sustained by him. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. 2. The case of the prosecution, as shaped in evidence, before the trial court is that on October 17, 1994 at about 7.45 A.M. the accused drove his motor cycle bearing registration No. KEZ 4026 in a rash and negligent Crl.R.P.981/01 2 manner along the Pavangad-Ulleri public road at Atholi amsom and Komagannur desom and knocked down a boy named Shafeeq, aged 9 years and as a result, he sustained serious injuries described in Ext.P3 wound certificate and that thereby the accused committed the offences punishable under sections 279 and 338 IPC. 3. The accused on appearance before the trial court, pleaded not guilty to a charge under sections 279 and 388 IPC. PWs. 1 to 14 were examined and Exts.P1 to P6 were marked on the side of the prosecution. When the accused was questioned under section 313 Cr.P.C. by the trial court, he submitted that the accident occurred when the boy tried to cross the road. No defence evidence was adduced. The trial court, on an appreciation of the evidence, found the accused guilty of the offences punishable under sections 279 and 338 IPC, convicted him there under and sentenced him as afore said. On appeal by the accused, the appellate court confirmed the conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration in this revision Petition:- 1) Whether the conviction of the revision petitioner under sections 279 and 338 IPC, which is confirmed by the lower appellate court in appeal can be sustained? Crl.R.P.981/01 3 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. PWs.1 to 14 were examined and Exts.P1 to P6 were marked on the side of the prosecution to establish the charge against the accused. PWs.1 and 2 are the parents of the injured. They did not witness the incident. The F.I.S. was given by PW1. PWs.3 and 4 are the alleged eye witnesses to the incident. They identified the accused and testified that the accident occurred due to the negligence on the part of the rider of the offending motor cycle. I have gone through the evidence of PWs.3 and 4, a certified copy of which is produced by the learned counsel for the revision petitioner, as the lower court records are not called for in this case. I find no reason to disbelieve their evidence. Nothing was brought out in consideration to show that they have any enmity towards the accused. Therefore, in my view that the trial court as well as the appellate court is perfectly justified in believing their evidence and coming to the conclusion that the accident occurred due to the negligence on the part of the accused. 6. PW5 and 6 are attesting witnesses to mahazar Ext.P2. PW7 is the autorickshaw driver who took the injured boy to the Medical College Hospital, Kozhikkode. PW8 is the Head Constable attached to the Medical College Police Station who recorded statement Ext.P1. PW9 is the doctor Crl.R.P.981/01 4 who examined the injured boy. He issued wound certificate Ext.P3, which would show that the boy sustained very serious head injuries. The evidence of PW1 would show that the boy was lying unconscious for about 1 ½ months and even after he regained his consciousness, he had neurological problems. PW10 is the Asst. Motor Vehicle Inspector who inspected the offending vehicle and issued Ext.P4 certificate. PW11 is the Head Constable attached to Atholi Police Station who registered F.I.R. Ext.P5. PW12 is another Head Constable of the Medical College Police Station, Kozhikode who registered Ext.P6 which was sent to Atholi Police Station. PW13 is the S.I. of Police, Atholi Police Station. He verified the investigation done by the Asst. Sub Inspector of Police and arrested the accused who surrendered before him. PW14 is the Investigating Officer who conducted the investigation laid the charge sheet. 7. The main argument advanced by the counsel for the revision petitioner is that the accident occurred while the injured boy attempted to cross the road and that therefore there was no negligence on the part of the accused. He is also argued that identity of the accused was not proved on the side of the prosecution. I find no merit in the above contentions. No evidence was adduced on the side of the accused before the trial court to show that the accident occurred while the injured boy was trying to cross Crl.R.P.981/01 5 the road. PW3 and 4 who are the eye witnesses identified the accused. Thus, the contention of the counsel for the revision petitioner that the identity of the accused was not established cannot be sustained. 8. The learned counsel for the revision petitioner arguing the revision submitted that that the injuries sustained by the boy is not grievous and hence, the charge under section 338 IPC will not lie against the accused. There is no substance in the above contention. It has come out in evidence that the injury sustained by the boy was very serious head injury and he was unconscious for about 1 ½ months. Therefore, the injury sustained by him is grievous as mentioned under clause eighthly of section 320 IPC. 9. The next question is whether there was any negligence on the part of the accused in the accident. The injured is a boy aged nine years at the time of the accident. He was walking along the western side of the road, as testified by Pws.3 and 4. The motor cycle came on the extreme western side of the road, knocked him down. It is clear from the above, that the accident occurred due to the rash and negligent driving of the offending motor cycle by the accused. For all these reasons, I am inclined to uphold the conviction of the revision petitioner under sections 279 and 338 IPC rendered by the trial court which is confirmed by the lower appellate court. Crl.R.P.981/01 6 10. As regards the sentence, the accused was aged 25 at the time of the accident and the accident occurred on October 10, 1994. Taking into consideration all these aspects, I feel that sentence of fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 279 IPC and sentence of imprisonment till the rising of the court and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 338 IPC would meet the ends of justice. 11. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sections 279 and 338 IPC rendered by the trial court, which is confirmed in appeal by the lower appellate court is upheld. The revision petitioner/accused is sentenced to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for month under section 279 IPC and to undergo simple imprisonment till the rising of the court and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 338 IPC. 10. There is yet another aspect that the injured boy sustained very serious head injuries. He was unconscious for about 1 ½ months. Therefore, the revision petitioner is directed to pay compensation of Rs.10,000/- to the injured boy who would have now become major, in default to undergo simple imprisonment for two months. One month's time is granted for Crl.R.P.981/01 7 payment of the fine amount and the compensation. He shall surrender before the trial court on or before November 30, 2009 to receive the sentence. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn