IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Crl.Rev.Pet.No. 1036 of 2002(B) -------------------------------------------- [CRL.A.NO.84/1999 OF ADDL.SESSIONS COURT, THODUPUZHA, CC.NO.290/1996 OF CHIEF JUDICIAL MAGISTRATE'S COURT, THODUPUZHA] .................... REVISION PETITIONER/PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------------------------- NAZEER, S/O. KASSIM, PATTATHUPARAMBIL HOUSE, SHAPPUMPADY BHAGOM, VENGALLOOR KARA, THODUPUZHA VILLAGE. BY ADVS. SRI. T.V. PRABHAKARAN, SRI. S. RAJEEV, SRI.N.A.MURALEEDHARAN. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.217/96 OF C.I. OF POLICE, THODUPUZHA). BY PUBLIC PROSECUTOR SMT. REKHA. C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/04/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.1036 of 2002. = = = = = = = = = = = = Dated this the 9th day of April, 2010. O R D E R The Circle Inspector of Police, Thodupuzha in Crime No.217 of 1996 prosecuted the revision petitioner before the Chief Judicial Magistrate, Thodupuzha, in CC.No.290/1996 alleging offence under Sections 279 and 304A I.P.C. with an allegation that at 10.25 a.m. on 13.5.1996 the revision petitioner drove a lorry bearing No.KL-6-1495 along Thodupuzha-Kanjiramattom bypass road in a rash and negligent manner so as to endanger human life and while driving the lorry to the Thodupuzha- Muvattupuzha main road, near Shobana Textiles, it hit down and ran over two police constables, namely George and Mathew, attached to Thodupuzha Police Station. As a result, George had an instantaneous death. Mathew Crl.R.P.No.1036 of 2002. -: 2 :- succumbed to the injuries while being examined at the Casualty of the Co-operative Hospital, Thodupuzha. On the basis of Ext.P1 First Information Statement given by another police constable, who was standing in front of the police station, which was 10.64 metres away from the place of occurrence, a case was registered by P.W.15, the then Sub Inspector of Police. The investigation was taken over by P.W.16, the Circle Inspector of Police, who completed the investigation and laid the charge-sheet. 2. Responding to the process issued by the learned Magistrate, revision petitioner entered appearance and pleaded not guilty when the particulars of the offences were read over and explained. Hence, he was sent for trial. On the side of the prosecution, P.Ws.1 to 18 were examined. Exts.P1 to P12 and M.Os.1 and 2 were marked. On appraisal of the evidence, the learned Magistrate arrived at a finding of guilt. Consequently, the revision petitioner was Crl.R.P.No.1036 of 2002. -: 3 :- convicted for offence under Sections 279 and 304A I.P.C. and sentenced to rigorous imprisonment for two months for offence under Section 279 I.P.C. and rigorous imprisonment for one year for offence under Section 304A I.P.C. Feeling aggrieved, he preferred Crl.A.No.84 of 1999 before the Sessions Judge, Thodupuzha. Additional Sessions Judge, Thodupuzha, to whom the appeal was subsequently made over, by judgment dated 9.7.2002, dismissed the appeal, whereby the conviction and sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition was filed. 3. The occurrence of accident was not disputed. The revision petitioner had taken up a contention that he was only a passenger and not the driver. The evidence of Pws.1 and 2 that the revision petitioner was the driver of the lorry remains unimpeached. Of course, the other occurrence Crl.R.P.No.1036 of 2002. -: 4 :- witnesses namely, Pws.3 to 8 had turned hostile. The evidence of Pws.1 and 2 is further supported by the evidence of Pw12 who is the owner of the vehicle. He had deposed that he has not seen the incident but he came to know that the revision petitioner, who was his driver, was driving the lorry. There is no suggestion to Pw12 that the revision petitioner was not the driver of the lorry. Further, it is revealed that in Ext.P9, Pw12 had reported to the Investigating Officer that the revision petitioner was the driver of the lorry. I don't omit to note that Pw12 had retracted from Ext.P9. But he would admit that Ext.P9 was signed by him. It is pertinent to note that at the time of accident he was at Thrissur and he came to know that in connection with the accident, revision petitioner was in police custody and he got released the revision petitioner on bail and to his query, revision petitioner told that the accident was due to brake failure. The evidence of Pw12 on Crl.R.P.No.1036 of 2002. -: 5 :- that aspect was not challenged in cross examination. In the light of the evidence of Pws.1 and 2, I find that the circumstances revealed out by the evidence of Pw12 and Ext.P9 also can be relied upon. The conclusion of the courts below that the revision petitioner was driving the lorry is based upon cogent evidence. 4. The evidence of Pw17, the Joint Regional Transport Officer coupled with his Ext.P12 report would show that the lorry had no mechanical defect and the brake system was efficient. So, mechanical defect cannot be attributed as the cause of the accident. 5. The evidence of Pw13, the Casualty Medical Officer attached to Idukki District Co-operative Hospital would show that late Mathew was brought to the hospital in a gasping condition and despite resurrective measures he breathed his last in the casualty. Ext.P4 inquest report prepared by Pw16 wherein Pw10 is an attestor would show Crl.R.P.No.1036 of 2002. -: 6 :- that Mathew who sustained injuries died. The evidence of Pw15, the Sub Inspector of Police, who prepared Ext.P11 inquest report would show that George also succumbed to the injuries. Exts.P7 and P8 postmortem certificates issued by Pw14, the Civil Surgeon, attached to Taluk Head Quarters Hospital would further establish that George and Mathew died due to head injuries and brain damage. Thus, the death of George and Mathew was proved by the above evidence. 6. The question then remains is whether the accident leading to the death of George and Mathew was due to rash or negligent driving of the revision petitioner. Pws.1 and 2, the two police constables examined had attributed negligence against the revision petitioner. Ext.P5 scene mahazar coupled with Ext.P3 scene plan prepared by Pw9, the Village Officer would show that the accident was at a road junction where Kanjiramattom – Crl.R.P.No.1036 of 2002. -: 7 :- Thodupuzha bypass joins the Thodupuzha – Moovattupuzha road, which is the main road. The revision petitioner who was driving a heavy vehicle should have been at a very low speed while driving to a main road from a side road. The evidence of Pws.1 and 2 coupled with Exts.P7 and P8 postmortem certificates would show that after hitting down two pedestrians the lorry was further driven and ran over both the victims. George was ran over at his head. There is no good explanation as to how the lorry ran over the pedestrians after hitting them down, that too where the revision petitioner was expected to drive at a very low speed. The learned counsel for the revision petitioner submitted that while the vehicle was driven to left, the lorry happened to run over the pedestrians and it was beyond his control. I am unable to accept the argument advanced by the learned counsel for the revision petitioner. The scene of occurrence and the manner in which the accident occurred Crl.R.P.No.1036 of 2002. -: 8 :- spoken by Pws.1 and 2 would lead to an inference that the revision petitioner was not only rash while driving to the main road from the side road, but also negligent. The learned counsel for the revision petitioner submitted that the scene mahazar as well as the site plan would show that the pedestrians were not at the side of the road but at the middle of the road. It is true that as regards the Kanjiramattom – Thodupuzha bypass road, the pedestrians were towards the middle of the road. But, they were along the southern side of the main road. It is the evidence of Pws.1 and 2 that George and Mathew were knocked down by the lorry while they were walking by the side of the Moovattupuzha – Thodupuzha road. The lie of the road would show that to walk further towards east, they had to cross the entry point of the Kanjiramattom bypass road to the Thodupuzha – Moovattupuzha road. As I mentioned earlier, a driver who was driving a heavy vehicle should Crl.R.P.No.1036 of 2002. -: 9 :- have been at a very low speed while driving to a main road from a side road. He should have anticipated pedestrians crossing the road and should have been very cautious. Had he been so cautious, the revision petitioner could have avoided the accident. Before driving to the main road from the side road, it was his duty to see that the road was clear to drive. Here, the evidence on record persuades one to arrive a conclusion that without caring for the pedestrians crossing the road at the junction, the revision petitioner drove the lorry which knocked down the pedestrians and they were also ran over. The scene mahazar, which also describes the lorry would show that brain matter as well as blood was seen sticking over the back wheel of the lorry. I find that with the evidence on record the courts below were justified in arriving at a conclusion that the revision petitioner was rash as well as negligent. There was utter rashness and negligence which led to the lorry running over Crl.R.P.No.1036 of 2002. -: 10 :- George and Mathew, as a result of which they died. The courts below were justified in arriving at a conclusion of guilty and conviction thereon. 7. The learned counsel for the revision petitioner relying upon two unreported decisions of this Court in Crl.R.P.No.576/1988 and Crl.R.P.No.100/1995 and also the decision of the Apex Court reported in Parkash Chandra Agnihotri v. State of Madhya Pradesh (1991 Supreme Court Cases (Crl.) 146) argued that in those cases this Court as well as the Apex Court had reduced the sentence to fine taking into account of the delay in disposal of the cases and the mental agony that the accused therein had suffered with particular reference to the set of facts there. It is not a precedent on law, but on facts confined to the particular case and not of general application or substitute for the relevant provisions in the penal code. In this case, there was not much delay in trial. The trial court disposed Crl.R.P.No.1036 of 2002. -: 11 :- the matter as early as 30-7-1999 and the appellate court had disposed the matter on 9.7.2002. Having due regard to the fact that this revision petition has been pending before this Court since 2002, the prosecution could not be found fault with for the delay which, if any, contributed for the mental agony and the embarrassment of the revision petitioner for a long period. In this view of the matter, I find that the delay in disposing of the revision petition cannot be taken in this case as a reason not to award substantial sentence provided by the penal code. With regard to the set of facts herein and the manner in which the accident occurred, I find that the precedents mentioned earlier cannot be based upon to refrain from awarding substantial sentence. In this case with regard to the set of facts, I find that confining the sentence to fine would tantamount to a flee-bite sentence to which I cannot agree. Now a days, road traffic accidents are increasing day by day Crl.R.P.No.1036 of 2002. -: 12 :- at an alarming rate. If cases of gruesome nature like the one on hand are disposed with a sentence of fine, it would give a wrong signal. Criminal justice delivery system would become ineffective. Sentencing policy has a great impact in the maintenance of law and order. While awarding sentence court has a duty to keep a balance between the crime and accused. Sentence not only serves as a punishment to the assailant, but also a detering signal against intended wrong doers. If the sentence is not effective, people would seldom respect law. It is a phenomenon accepted from time immemorial. According to Manu, people respect law not because of the respect to law, but because of the fear of penal provisions. "Sarvo dandajitho loko durlabho hi suchirnara Dandasya hi bhayathsarvam jagathbhogaya kalpathe". (Verse 22, Chapter VII of Manusmrithi) If cases of this nature are disposed with sentence of fine, it Crl.R.P.No.1036 of 2002. -: 13 :- would give a wrong signal to erring drivers. Therefore, I am constrained to turn down the request of the learned counsel for the revision petitioner to convert the sentence to one of fine. However, taking into account that the revision petitioner is now aged 50 years and other attendant circumstances and taking note that this Court as well as the Apex Court had taken a lenient view in certain other cases, though with different set of facts, I find that a sentence of simple imprisonment for six months for offence under Sec.304A IPC with order to suspend the driving licence of the revision petitioner for a period of one year would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction under challenge, the sentence is reduced to simple imprisonment for six months for offence under Sec.304A IPC. No separate sentence is awarded for offence under Sec.279 IPC. The driving licence Crl.R.P.No.1036 of 2002. -: 14 :- of the revision petitioner shall stand suspended for a period of one year. He is directed to surrender before the trial court forthwith along with the driving licence for execution of the sentence. The bail granted to the revision petitioner while admitting this revision petition would stand cancelled. Trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN (Judge) Kvs/-