IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Crl.Rev.Pet.No. 36 of 2002 ---------------------------- CRA.216/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.458/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER: /APPELLANT/ACCUSED: ---------------------------------------- BABY THOMAS, S/O.THOMAS, GRACE HOUSE, VALLIKKADAVU P.O., PARAPPA, KASARAGODE. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT: /RESPONDENT/COMPLAINANT: --------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. P. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. NO. 252 OF 2002 IN CRL.R.P.NO. 36 OF 2002. DISMISSED. 25-9-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.R.P.NO. 36 OF 2002 ======================= Dated this the 25th September 2009 ORDER The accused is the revision petitioner. He assails the concurrent verdict of guilty, conviction and sentence imposed on him under Sections 279, 337, 338 and 304 A of the Indian Penal Code. 2. The prosecution alleged that the accused drove a stage carriage along Malapparamba-Chevarambalam road at 4.15 p.m.on 9-11-1995 in a rash and negligent manner at an excessive speed. On account of such rashness and negligence, the vehicle driven by the accused hit on the body of the deceased Jessy John and her daughters, Pws.1 and 2 who were walking along the road and they were thrown to the heap of rubbles stacked at the side of the road. PWs.1 and 2 and the deceased Jessy John sustained injuries. Jessy John succumbed to the injuries on the same day. After investigation, the police CRRP 36/2002 -2- filed charge sheet against the accused. 3. The accused entered appearance and denied the offences alleged against him. Thereupon the prosecution examined PWs.1 to 16 and marked Exts.P1 to P13. PWs.1 and 2 are the injured. PW3 is the eye witness and was traveling in the bus involved in the accident. PW3, the Assistant Pubic Prosecutor attached to the court of Judicial First Class Magistrate-III, Kozhikode at the relevant time and had allegedly witnessed the occurrence. PW6 lodged Ext.P2 first information statement regarding the incident. PW4 is the brother of the deceased Jessy John who identified the dead body. PW12 is the doctor who examined deceased Jessy John and the injured PWs.1 and 2. Exts.P8 to P10 are the wound certificates issued by him. PW10 is the doctor who conducted the post mortem examination on the body of deceased Jessy John. Ext.P6 is the postmortem certificate. Ext.P7 is the mahazar of the bus prepared by PW14. PW11 is the witness in Ext.P7. PW9 is the conductor of the bus and identified the accused as the driver of that bus at the time of the incident and also deposed about the accident that the bus hit CRRP 36/2002 -3- on the body of deceased Jessy John. PW15 is the Motor Vehicle Inspector who inspected the vehicle and issued Ext.P13 inspection report. Ext.P1 is the inquest report prepared by PW14 who conducted the investigation. PW5 is the witness to Ext.P1. Ext.P2 is the first information statement recorded by PW13 on the basis of which Ext.P11 first information report was registered and Ext.P3 is the scene mahazar. All the witnesses supported the prosecution case. 4. The accused did not dispute the fact that he was driving the vehicle at the relevant time. He put forward a different version to explain the accident. According to him, he was driving the vehicle, carefully when reached at the place of accident, he swerved the bus towards northern side, in order to save an autorikshaw which was proceeding from the opposite side and the incident happened not due to his negligence. No defence evidence was adduced. 5. The courts below came to the concurrent conclusion that the accident occurred due to the culpable rashness and negligence of the petitioner-accused. Accordingly, they CRRP 36/2002 -4- proceeded to pass the impugned judgments. 6. The learned counsel for the revision petitioner and the learned Public Prosecutor were heard. Both the courts below have chosen to place reliance on the oral evidence of PWs.1 to 3. I have gone through the deposition of cross examination of PWs.1 to 3 in detail. I find no reason to disbelieve their evidence. So also I find no reason as to why PW3 should speak falsehood against the accused and in favour of the injured and deceased/prosecution. The evidence of PWs.1 to 3 is eminently supported and corroborated by the version given by PW6 in Ext.P2 first information statement. The incident had taken place at 4.15 p.m. on 9-11-1995 and the first information statement is lodged on 10-11-1995. 7. The road at the scene of the incident lies east west. There is clear visibility towards both sides from the scene, i.e.25 metres towards west and 75 metres towards east. The tarred portion of the road has a width of 6.50 metres. The bus driven by the accused was proceeding from west to east. The incident happened at a distance of 75 cm. north to the northern end of CRRP 36/2002 -5- the tar road and on the mud portion. The bus came from behind and hit at the back of PWs.1 and 2 and deceased Jessy John while they were walking through the mud portion of the road on the northern side. As a result of the hit, they were thrown away on the heap of stones collected on the road margin and sustained injuries. The bus proceeded further and stopped after climbing over the baby metals collected on the road side. The spot of occurrence is identified by PW14 in Ext.P3 scene mahazar. The identification of the scene of occurrence in Ext.P3 is consistent with the oral evidence tendered by Pws.1 to 3. Evidently, the vehicle, bus driven by the accused had gone to the mud portion of the tarred road and hit against the pedestrians , causing injuries to them and one of whom succumbed to the injuries. No evidence was adduced on the defence side to doubt or to discard the evidence of PWs.1 to 3 which is found to be satisfactory and inspiring. 8. The defence taken by the accused that he swerved the bus to the left side of the road in order to save the autorikshaw which came from the opposite side has not been substantiated. CRRP 36/2002 -6- Instead it is evidenced from the scene mahazar, Ext.P3 that trenches digged at the place of incident were covered. There is nothing to prove, presence of big stones on the road at the place of incident and to prove that the autorikshaw swerved towards right side to avoid the stones as stated by the accused during Section 313 examination. 9. I must also alertly bear in mind the nature and quality of the jurisdiction of this court in revision. Even the quest for a better conclusion on facts cannot persuade a court of revision to invoke its revisional jurisdiction of superintendence and correction to interfere with the findings of fact rendered and the discretions exercised by the trial court. I do not find any sufficient reason to invoke the revisional jurisdiction to interfere with the discretion exercised by the courts below in choosing to place reliance on the oral evidence of PWs.1 to 3. At any rate, I am not in these circumstances satisfied that interference with the verdict of guilty and conviction is called for. Therefore, the conviction shall have to be confirmed. I do so. CRRP 36/2002 -7- 10. Coming to the question of sentence the courts below have convicted the accused and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under Section 279 I.P.C., S.I. for two months and to pay a fine of Rs.500/-, in default to undergo S.I. for fifteen days under Section 337 I.P.C., S.I. for three months and to pay a fine of Rs.1000/-, in default to undergo S.I. for one month under Section 338 I.P.C. and to undergo S.I. for one year and to pay a fine of Rs.2000/-, in default to undergo S.I. for one month u/s.304(A)I.P.C. with the direction that the sentences shall run concurrently. 11. It is submitted by the learned counsel for the petitioner that the sentence imposed by both the courts below on the petitioner for the offences alleged under Sections 279, 337, 338 and 304-A is excessive and pray to modify the sentence. The prosecution has no case that any similar offence has been committed by the petitioner subsequent to this incident. Passage of about 14 years and the fact that the trauma of this prosecution has been endured by the revision petitioner, all these years is a CRRP 36/2002 -8- factor which has to be taken into account. I am however not satisfied that this is a fit case where the provisions of the Probation of Offenders Act can be invoked. The accused is not shown to have any criminal antecedents. Considering all circumstances, particularly the elapse of a long period of time after the incident, I am satisfied that though deterrent substantive sentence of imprisonment is essential, such deterrence does not necessarily depend on the length of the period that the offender spend behind the bars. Imposition of maximum sentence of fine under Sections 279, 337 & 338 I.P.C. coupled with substantive sentence of rigorous imprisonment for one year under Section 304-A I.P.C. with option to the petitioner to pay compensation under Section 357(3) Cr.P.C. to PWs.1 and 2 and to the legal heirs of deceased Jessy John shall serve the ends of justice. The challenge succeeds only to the above extent. 12. In the result, a) This revision is allowed in part, b) The verdict of guilty and conviction of the revision petitioner under Sections 279, 337, 338 and 304 A I.P.C. are CRRP 36/2002 -9- upheld. c) But the sentence imposed on the revision petitioner is modified and reduced. He is sentenced to pay a fine of Rs.1000/- each under Sections 279 & 338 I.P.C. and in default to undergo simple imprisonment for a period of one month each. He is further sentenced to pay a fine of Rs.500/- for the offence under Section 337 I.P.C. and in default to undergo simple imprisonment for 15 days. The sentence imposed for the offence punishable under Section 304-A I.P.C., I feel, is a bit harsh. Therefore, it shall have to be reduced to rigorous imprisonment for one year. But, in case the petitioner opts to pay an amount of Rs.50,000/- to PWs.1 and 2 and to the legal heirs of deceased Jessy John towards compensation, the sentence of imprisonment shall stand reduced to one day until the rising of the court. 13. Accordingly the revision petition is disposed of in the above terms with a direction to the revision petitioner to appear before the trial court on 26-11-2009 to receive the sentence, of either rigorous imprisonment for one year or at his option, to deposit Rs.50,000/- in that count to be payable to PWs.1 and 2 CRRP 36/2002 -10- and to the legal heirs of deceased Jessy John and to undergo imprisonment till the rising of the court. The court below shall inform PWs.1 and 2 and to all the legal heirs of the deceased Jessy John, in case of deposit of the compensation to receive it from the court at the rate of Rs.15,000/- to PW1, Rs.10,000/- to PW2 and the remaining Rs.25,000/- to all the legal heirs of deceased Jessy John including PWs.1 and 2 in equal shares. 14. The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 26-11-2009 for execution of the modified sentence. Needless to say, the learned Magistrate shall be at liberty to invoke his powers under Section 446 of the Cr.P.C.if the petitioner does not appear as directed above. ks. M.C. HARI RANI, JUDGE CRRP 36/2002 -11- M.C. HARI RANI, J. ========================== CRL.R.P. NO. 36 OF 2002 ORDER 25-9-2009 =========================== CRRP 36/2002 -12- CRRP 36/2002 -13- The petitioner herein is the accused in C.C.No.458/1996 on the file of the Judicial First Class Magistrate Court, Kunnamangalam. That case arose against the petitioner on the basis of the final report filed by the Circle Inspector of Police,Kunnamangalam. Crime No.1717/1995 alleging the commission of offence punishable under Sections 279,337, 338 and 304(A) of the Indian Penal Code. 2. The prosecution case against the petitioner was that on 9-11-1995 at about 4.1.5 p.m. the petitioner drove a bus bearing registration No.KEE 2316 along Malaparambu- Chevarambalam public road in a rash and negligent manner so CRRP 36/2002 -14- as to endanger human life and when it reached Pachakkil, it hit against PWs.1 and 2 and their mother Jessy John causing injuries to PWs.1 and 2 and fatal injuries to Jessy, who succumbed at 7.30 p.m. on the same day from the Medical College Hospital, Kozhikode. The petitioner was tried before the trial court. PWs.1 to 16 were examined on the side of the prosecution and Exts.P1 to P13 were marked. No evidence either oral or documentary has been adduced on the side of the defence. After examining the accused under Section 313 Cr.P.C., the learned Judicial Magistrate of First Class, Kunnamangalam as per judgment dated 9-4-1999 found the accused guilty under Sections 279, 337, 338 and 304(A) of I.P.C. 3. The petitioner preferred Appeal, Crl.A. No.216/1999 before the Sessions Court. The learned Additional Sessions Judge, Kozhikode as per judgment dated 27-8-2001 confirmed the conviction and sentence imposed by the trial Judge against the petitioner and the appeal was accordingly dismissed. Thereafter, this Criminal Revision Petition is preferred by the petitioner/accused. CRRP 36/2002 -15- 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5.It is submitted by the learned counsel for the petitioner that the sentence imposed by both the courts below on the petitioner for the offences alleged under Sections 279, 337, 338 and 304(A) is grossly disproportionate and pray to modify the sentence. The prosecution has no case that any similar offence has been committed by the petitioner. He had no other criminal background also prior to this incident. Considering the evidence adduced on the side of the prosecution, both oral and documentary and after appreciating the evidence, the trial court as well as the appellate court found the petitioner guilty for the offence under Sections 279, 337, 338 and 304(A) of I.P.C. and he was convicted and sentenced as follows: Section 279 IPC: convicted and sentenced to undergo simple imprisonemnt for two months and to pay a fine of Rs.1000/-, in defaultl to undergoo simple imprisonment for one month. CRRP 36/2002 -16- Section 337 IPC: simple imprisonment for two months and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for fifteen days. Section 338 IPC: simple imprisonment for three months and to pay a fine of Rs.1000/-and in default to undergo simple imprisonment for one month. Section 304(A)IPC: simple imprisonment for one year and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for one month. 6. On a perusal of the oral evidence of PWs.1 and 2, the injured persons who were the pedestrians at the time of the incident and also nature of the injuries sustained by them as revealed from the wound certificate marked as Exts.P9 and P10 and also the evidence of the Doctor, PW12, who examined PWs.1 and 2 from the Medical College Hospital, Calicut, I find that conviction of the petitioner under Sections 279, 337, 338 and CRRP 36/2002 -17- 304(A) of I.P.C. is to be confirmed and the sentence can be modified. The alleged incident occurred on 9-11-1995, 14 years have already expired. In these circumstances, I find that the sentence can be modified to the maximum fine of Rs.1,000/- for the offence under Section 279 I.P.C., in default of the same to undergo simple imprisonment for one month; fine of Rs.500/- for the offence under Section 337 I.P.C., in default to undergo simple imprisonment for 15 days and fine of Rs.1000/- for the offence under Section 338 IPC, in default to undergo simple imprisonment for one month. 7. In the incident, the mother of PWs.1 and 2 named Jessy John also sustained fatal injuries and was examined by PW.12, the Doctor at Medical College Hospital, Kozhikode, at 5 p.m. on the same day and at that time she was in a state of coma and expired at 7.30 p.m. on the same day as revealed from the oral evidence of PW.12 and from Ext.P8 certificate issued by PW.12 and also from the postmortem certificate marked as Ext.P6. 8. The petitioner has committed the offence under Section CRRP 36/2002 -18- 304A of IPC has been proved from the evidence adduced on the side of the prosecution and from the documents especially Exts.P6 and P8. The deceased succumbed to injuries after about three hours of the incident. I have already found that 14 years have already elapsed after the incident. Considering the facts and circumstances of this case and on haring the learned counsel for the petitioner and also the learned Public Prosecutor, I find that in the interest of justice, the conviction imposed on the petitioner for the offence under Section 304(A)of IPC can be confirmed and sentence can be modified, directing the petitioner to appear for imprisonment till the rising of the court. Instead of imposing fine under Section 304(A), I find that justice can be done by directing the petitioner to pay compensation under Section 357 (3) of Cr.P.C. of Rs.50,000/- as substantive sentence for the offence. The amount of compensation, if deposited by the petitioner before the trial court, PWs.1 and 2 are entitled to get Rs.15,000/- and Rs.10,000/- respectively. The remaining Rs.25,000/-- can be given to all the legal heirs of deceased Jessy including PWs.1 and 2 in equal shares. In default of deposit of CRRP 36/2002 -19- the compensation amount of Rs.50,000/- imposed on the petitioner under Section 357(3), he is liable to undergo simple imprisonment for six months. 9. This Criminal revision petition is disposed of as above. The petitioner is directed to appear before the trial court on 26- 11-2009 and the trial Judge is directed to execute the order imposed on the petitioner. The petitioner is directed to deposit the compensation amount on or before 26-11-2009. M.C. HARI RANI JUDGE ks.