IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.Rev.Pet.No. 1517 of 2001() ------------------------------ CRA.144/1997 of ADDL.SESSIONS COURT, THALASSERY CC.388/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- P.KRISHNANKUTTY S/O.KUNHIRAMAN, AGED ABOUT 28 YEARS, VALAVIL CHELERI, P.O.CHELERI, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE REP. BY S.H.O.PAYYANNUR POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.1517 of 2001 -------------------------------------- Dated this the 24th day of September, 2008. ORDER It is alleged that revision petitioner was driving a tempo van on the early hours of 27.5.1993 along the National Highway towards Kasaragod side (ie., from south to north) and at the place of accident that van hit a newspaper boy who was riding a cycle. The boy sustained injuries and succumbed to it. Revision petitioner faced trial for the offences punishable under Section 279, 337 and 304 A of the Indian Penal Code on the charge that he drove the tempo van in a rash and negligent manner so as to endanger human life and caused the death of the newspaper boy. Learned Magistrate found the revision petitioner guilty, convicted and sentenced him to undergo imprisonment for various periods. Learned Additional Sessions Judge who heard the appeal dismissed the same. Hence, this revision. 2. Heard both sides. Counsel for the revision petitioner submitted that there was no rashness or negligence on the part of the revision petitioner and that the accident occurred when the deceased abruptly entered the National Highway from a cut road. To avert the accident, revision petitioner swerved the van towards the right side and the vehicle happened to hit the compound wall. Crl.R.P.No.1517/2001 2 3. That, the deceased sustained injuries in the accident and succumbed to it is proved by the prosecution and that is not under challenge also. It is seen from Ext.P7 that the accident was not due to any mechanical defect of the vehicle. There is no dispute regarding the identity of the driver of the vehicle before me and that is spoken by PWs 3 and 4. What remains for consideration is whether rashness and negligence on the part of the revision petitioner is established. 4. Ext.P3 is the mahazar for the scene of occurrence. The lie of the National Highway at the accident spot is north - south. The accident spot is 1.50 metres west of the eastern tar end, the tar portion having width of 5.24 metres. It is also stated in Ext.P3 that there is a cut road (side road) having width of 2.4 metres towards east from the National Highway. Ext.P3 states that the Police Officer identified the place of occurrence as pointed out by PW3 who claimed to have witnessed the accident. But PW3 stated in chief examination itself that the accident occurred on the western side of road. No attempt was made to correct the statement. As such going by the evidence of PW3 who witnessed the accident it would appear that the accident occurred towards the western side of the road and not on the eastern side as stated in Ext.P3. Therefore reliance cannot be placed on the place of occurrence stated in Ext.P3. Crl.R.P.No.1517/2001 3 5. It is not disputed that revision petitioner was driving the offending vehicle from south to north. According to PW3, the cyclist came from east to west. The lie of the National Highway is north - south and hence the statement of PW3 indicated that the deceased was riding the cycle from east to west along the cut road. This is further clear from the statement of PW3 that the deceased was coming along the cut road. Thus, there is evidence to show that the deceased was riding the cycle along the cut road from east to west and entered the National Highway. PWs 3 and 4 who were travelling in the offending vehicle stated that the van was coming at average speed. PW4 stated that deceased was crossing the road. PW4 was confronted with his previous statement that when the cyclist came near the tempo van, the driver of the van applied break. When it was suggested to PW4 that the driver had swerved the vehicle to the right side to save the cyclist, PW4 answered that he saw the vehicle going towards the right side. On going through the evidence of PWs 3 and 4 it would appear, at least that possibility cannot be ruled out, that the accident occurred towards the western side of the road in the process of the deceased crossing the road having emerged into the National Highway from the cut road on the eastern side. In the facts and circumstances of this case, culpable rashness and negligence cannot be attributed to the revision petitioner. He therefore, is entitled to an acquittal. Crl.R.P.No.1517/2001 4 Revision Petition is therefore, allowed. Conviction and sentence imposed on the revision petitioner are set aside. He is acquitted of the charges against him. Bail bond is cancelled. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1517/2001 5 Thomas P.Joseph, J. Crl.R.P.No.1517 of 2001 ORDER 24th September, 2008.