IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 Crl.Rev.Pet.No. 1218 of 2003() ------------------------------ CRA 256/98 OF ADDL.SESSIONS COURT (ADHOC-I), THALASSERY C.C.511/95 OF ADDL. Chief Judicial Magistrate, THALASSERY REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ANIL KUMAR S/O. KRISHNAN, AGED 33 YEARS, DRIVER,KOTHAVALLUR AMSOM, DESOM, THALASSERY, KANNUR. BY ADV. SRI.P.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1218 OF 2003 --------------------------------------------- Dated 14th July, 2010 O R D E R Petitioner, the driver of jeep KL-13A-8467 on 23/11/1994 which hit on Sarada and caused her death by his negligent driving, was convicted and sentenced for the offence under Sections 279 and 304 A of Indian Penal Code by Additional Chief Judicial Magistrate, Thalassery in C.C.511/1995 Though petitioner challenged the conviction and sentence before Sessions court, Thalassery in Crl.A.256/1998, learned Additional Sessions Judge confirmed the conviction for the offences under Sections 279 and 304A, but modified the sentence to simple imprisonment for three months for the Crrp 1218/03 2 offence under Section 304 A of Indian Penal Code confirmed the fine and sentence for the offence under Section 279 of Indian Penal Code. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner argued that courts below did not properly appreciate the evidence. It was argued that though evidence of Pws.1, 3 and 4 were relied on by the courts below, their evidence should not have been relied on in the light of the contradictions established by Exts.D1 to D6 proved through the investigating Officer. It was argued that the road is having a width of 6.25 meters and jeep was proceeding from south to north and proper side of the jeep is west and width of western road margin is 2.8 meter and according to the evidence of Pws.1,3 and 4 deceased Sarada and DW2 Nalini were standing on Crrp 1218/03 3 the mud portion of the road on the western side of road talking and then jeep came from Thalassery side and hit on the deceased and caused her heath and Ext.P2 scene mahazar shows that the exact spot where the deceased was hit by the vehicle could only be 1 meter to the east of the western tarred end and if that be so, deceased could not have been talking with DW2 on the western road margin as claimed by Pws.1,3 and 4 and therefore, their evidence should not have been believed. It was argued that though DW2 was cited as a prosecution witness, she was not examined and she was examined by the defence and her evidence shows that she along with deceased Sarada alighted from the bus on the eastern side of the road and all of a sudden, Sarada crossed the road and then she was hit by the jeep and therefore, it is to be found that the incident occurred Crrp 1218/03 4 only due to the negligence by Sarada in crossing the road without taking proper care and not due to the negligence of the driver of the jeep. It was argued that tyre mark found on the road establishes that on seeing the deceased suddenly crossing the road, he had applied brake and in such circumstances, conviction for the offence under Section 304 A and 279 is not sustainable. Learned counsel also argued that damage to the vehicle as proved by the evidence of PW14, A.M.V.I and Ext.P4 report of A.M.V.I is on the rear right side of the vehicle and if that be so, portion of the jeep which hit on the deceased could only be right rear side and if prosecution case can only be disbelieved and therefore, the conviction is illegal. 3. Learned Public Prosecutor submitted that courts below appreciated the Crrp 1218/03 5 evidence in the proper perspective and there is no reason to interfere with the findings. 4. Learned counsel appearing for the petitioner has taken me through the entire evidence. Ext.P2 scene mahazar establishes the actual lie of the road at the scene of occurrence. Road is National Highway and it proceeds from Thalassery to Kannur. Road at the scene is lying north to south. Tarred road is having a width of 6.25 meters. Eastern road margin is having a width of 5.10 meter and western road margin is having a width of 2.8 meters. Jeep was proceeding from south to north. Scene of occurrence, as is clear from Ext.P2, is 1 meter to the east of the western tarred end. Scene mahazar also shows that there is tyre mark to the south of that spot, to a distance of about 3 meter and blood marks to a width of 32 cm. Though it was contended before Crrp 1218/03 6 the courts below that petitioner was not driving the vehicle and the evidence of PW9 the owner of the vehicle was relied on, learned Magistrate and learned Sessions Judge relying on the evidence of Pws.1 and 4 who identified the petitioner as the driver of the vehicle was accepted and rejected the contention. I find no reason to differ with that conclusion, as PWs.1 and 4 had sufficient opportunity to identify the driver of the jeep at scene of occurrence. 5. Though learned counsel appearing for the petitioner vehemently argued that evidence of Dw2 establish that DW2 along with Sarada got down on the eastern side of the road and deceased all of a sudden, crossed the road from east to west and therefore, the incident was not due to any negligence of the driver of the jeep, but that of the deceased, Crrp 1218/03 7 on the facts and evidence, I cannot agree. Even if the argument is accepted and it is taken that deceased all of a sudden crossed the road from east to west, but for the negligence of the petitioner in driving the jeep the incident would not have occurred. The width of the tarred road is 6.25 meters. The deceased was hit by the vehicle 1 meter to the east of the western tarred end. If so, it is clear that if deceased was crossing the road from the east to west she had by that time crossed 5.25 meters from eastern tarred end. Ext.P2 scene mahazar shows that road is lying straight and visibility is 200 meter from the south. When the deceased had crossed 5.25 meters of the road from the eastern road margin, petitioner had sufficient time to stop the vehicle and avoid the incident of this nature, even if it is taken that deceased crossed the road all of Crrp 1218/03 8 a sudden. It is clear from the tyre marks seen on the road that petitioner had applied brake suddenly, while it was coming in over speed. If petitioner was not negligent and deceased had crossed the road by 5.25 meter before the vehicle hit on her, if petitioner was not driving rashly and negligently petitioner had sufficient time to avoid the incident. Therefore, even if the defence case is true and suddenly deceased crossed the road from east to west is accepted, it is clear that deceased was hit by the jeep, only due to the rash and negligent driving of the jeep by the petitioner. 6. Argument of the learned counsel is that case of the prosecution is that deceased was talking with DW2 on the western road margin and then the vehicle hit on her and evidence of DW2, the sister-in-law of the deceased Crrp 1218/03 9 disproved that case and if deceased was standing on the western road margin incident would not have occurred 1 meter to the east of the western road margin and so, prosecution case cannot be believed. True, it is clear that deceased was at the point of time when jeep hit on her, was not exactly on the western road margin. She should have been standing on the tarred road. But on that ground also, it cannot be said that petitioner was not negligent. When the road is having a width of 6.5 meters and eastern road margin is having a width of 5.10 meters, even if deceased was standing on the road, 1 meter to the east of western tarred end,petitioner has sufficient opportunity to slow down the vehicle and avoid the incident, if he was driving the vehicle not rashly and negligently. It is more so, when there is not even a suggestion that any other vehicle was Crrp 1218/03 10 coming from the north or even from south at that time. Though it was argued that if the deceased was hit on the front right side of the jeep, as deposed by Pws.1,3 and 4, damage would not have been on the right rear side of the vehicle, based on the damage noted on the right rear side in Ext.P4 report, on the evidence it is not possible to hold that the right rear side of the jeep had hit on the deceased and not the right front side. On the evidence, I find no reason to interfere with the findings of the courts below that petitioner was driving the jeep rashly and negligently and it was due to his rash and negligent driving the jeep hit on the deceased and caused the death of Sarada. In such circumstances, conviction of the petitioner for the offences under Sections 279 and 304 A of Indian Penal Code is perfectly legal and Crrp 1218/03 11 warrants no interference. 7. Learned counsel then argued that sentence may be modified and petitioner is prepared to pay compensation. It was argued that the fact that petitioner has settled the dispute with the legal heirs of the deceased is clear, as it was DW2 the sister-in-law of the deceased who deposed against the prosecution case in support of the defence and in such circumstances, considering the fact that the incident was in 1994, sentence be reduced. 8. Learned Magistrate has awarded a sentence of imprisonment for one year and fine of Rs.2,000/- for the offence under Section 304 A and fine of Rs.1,000/- for the offence under Section 279 of Indian Penal Code. Learned Additional Sessions Judge reduced the substantive sentence for the offence under Crrp 1218/03 12 Section 304 A to simple imprisonment for three months, confirming fine of Rs.2,000/-. Question is whether interest of justice warrants reduction of the sentence further as sought for. Considering the increase in the rash and negligent driving with least concern for human life, it is not in the interest of justice to sentence an accused convicted for the offence under Section 304 A, for fine alone as canvassed by the learned counsel. Similarly, awarding a sentence of imprisonment till rising of court is also not a justifiable sentence, as it will serve no purpose. Payment of compensation also will not be a valid substitute. Considering the fact that learned Sessions Judge has already reduced the substantive sentence to simple imprisonment for three months, I find it not in the interest of justice to reduce it further. Crrp 1218/03 13 Revision is dismissed. Petitioner is directed to appear before the Chief Judicial Magistrate, Thalassery on 30/8/2010. Chief Judicial Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.