IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 Crl.Rev.Pet.No. 4224 of 2007() ------------------------------ CRA.107/2004 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD CC.373/2001 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------- VIJAYAN, S/O.SANKARAN, AGED 39 YEARS, ODATTUPARAMBIL HOUSE, CHEMMANNOOR (PO), KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. = = = = = = = = = = = = = = Crl.R.P.No.4224 of 2007. = = = = = = = = = = = = = = Dated this the 25th day of March, 2010. O R D E R The Sub Inspector of Police, Town Traffic Unit, Palakkad in Crime No.45/01 prosecuted the revision petitioner before the Chief Judicial Magistrate, Palakkad in CC.No.373/2001 for offence under Section 279 and 304A IPC and Sec.3(1) r/w.181 of the Motor Vehicles Act. It was alleged that at 9.30 am. on 17.1.2001 at Kinassery along Kinassery - Yakkara public road at Palakkad, the revision petitioner had been driving a Tempo Van bearing registration No.KL-10/F 7597 from south to north in a rash and negligent manner so as to endanger human life and hit against a motor cycle bearing registration No.KL-9/G 3817 ridden by late Kunhirama Pilla in the opposite direction. As a result, Kunhirama Pilla sustained grievous injuries, to which he succumbed at the spot of occurrence and that Crl.R.P.No.4224 of 2007. -: 2 :- the revision petitioner was having no valid driving licence. 2. The revision petitioner pleaded not guilty when particulars of the offence were read over and explained to him. Therefore, he was sent for trial. On the side of the prosecution Pws.1 to 12 were examined and Exts.P1 to P9 were marked. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, revision petitioner was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.5,000/- with a default sentence of simple imprisonment of three months for offence under Sec.304A IPC. He was further sentenced to rigorous imprisonment for six months and a fine of Rs.1,000/- with a default sentence of simple imprisonment for 15 days for offence under Sec.279 IPC. For offence under Sec.3(1) r/w.181 of the Motor Vehicles Act, he was sentenced to a fine of Rs.500/- with a default sentence of simple imprisonment for 10 days. In Crl.Appeal 107/2004, Crl.R.P.No.4224 of 2007. -: 3 :- the Addl.Sessions Judge, Adhoc-II, Palakkad to whom the appeal was made over concurred with the trial court in its finding of guilty. Consequently, the conviction was confirmed. The learned Addl.Sessions Judge was lenient to reduce the substantial sentence to simple imprisonment for three months and six months for offence under Sec.279 and 304A respectively. In all other respects, the conviction and sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. 3. In support of the prosecution case regarding the occurrence, there is only the oral testimony of Pw1, who is a Conductor employed in the Kerala State Road Transport Corporation. He was riding another motor cycle behind the one ridden by late Kunhirama Pilla. On the basis of his first information statement, Pw11, the Asst.Sub Inspector of Crl.R.P.No.4224 of 2007. -: 4 :- Police registered the case. The investigation was taken over by Pw12 Sub Inspector. Pw12, after completing the investigation submitted the final report. Pw2 was examined as an occurrence witness. But, he had deposed that he didn't actually see the hitting. According to him, he who was residing close by, heard the sound, rushed to the road and found Kunhirama Pilla lying dead by the side of the road in a pool of blood. The van which hit the motor bike, stopped there for some time and then drove away. Pws.3 and 5 are the attestors to Ext.P2 inquest report prepared by Pw12. Pw6 was also cited as an occurrence witness, but he had deposed that he didn't witness the occurrence. He heard the sound and found Kunhirama Pilla lying dead with brain matter protruding out of skull. Pw7 is an attestor to Ext.P3 scene mahazar. Pw8 is the Police Surgeon attached to the District Hospital, Palakkad who conducted post mortem examination and certified in Ext.P4 that Kunhirama Crl.R.P.No.4224 of 2007. -: 5 :- Pilla died due to head injuries. Pw9, the Motor Vehicles Inspector inspected both vehicles and issued Exts.P5 and P6 certificates relating to the tempo van and motor cycle respectively certifying that brake system of both the vehicles were efficient. Pw10 is a photographer who had taken Ext.P7 series photographs. Pws.11 and 12 are the police officers as mentioned earlier. 4. Though Exts.P2 and P3 would show that the tar portion of the road at the place of occurrence was having a width of six metres, at what portion of the road from the tar end, the motor cycle and its rider were lying after the accident is not revealed out. Ext.P7 photographs would depict the victim lying in pool of blood with the motor cycle. It was submitted that it was along the side of the road, though not at the tar end. It is a little towards the middle. Definitely, it is not at the middle. Pw1 had deposed that the motor cycle was ridden along the eastern side of Crl.R.P.No.4224 of 2007. -: 6 :- the road and that the deceased and Pw1 were riding from north to south and that the accident occurred on the eastern side of the road. The evidence of Pw.1 on that aspect is not at all challenged in cross examination. The report of the Motor Vehicles Inspector would show that the damages of the tempo van was on its right side indicating that the tempo van hit the motor cycle by its right side and it is not at all a face to face collision. There is nothing on record to show that the rider of the motor cycle had gone to the wrong side of the road which had a width of six metres. Whereas the evidence of Pw1 coupled with Ext.P7 would convincingly establish that the collision was at the eastern half of the road. The learned counsel for the revision petitioner vehemently argued that the fact that the victim and the motor cycle were lying at the tar road is a sufficient indication that the rider of the motor cycle had hit on the tempo van which was driven along the side of the road and Crl.R.P.No.4224 of 2007. -: 7 :- unless the motor cycle was driven to the wrong side of the road the accident wouldn't have occurred. Having a careful reading of the evidence of Pw1, judgments impugned and looking at Exts.P2, P3 and P7, I am unable to accept the argument advanced by the learned counsel. The submission made by the learned counsel is not convincing. On the other hand, I see no reason to reject the evidence of Pw1 that the deceased was riding along the eastern side of the road. The courts below had analysed the evidence on record and arrived at a right conclusion that the accident was at the eastern half of the road and that the tempo van, which was driven from south to north went to the wrong side, ie., eastern half of the road and hit down the motor cycle. It appears that the van ran over the victim to crush his skull. The revision petitioner has no good explanation as to how the accident occurred on the eastern half of the road. There is little material to conclude that the victim had contributed any negligence. He was keeping his side. In the above Crl.R.P.No.4224 of 2007. -: 8 :- circumstance, I find that the conclusion arrived by the courts below that the tempo van was driven to the right half of the road without caring the traffic in the opposite direction and hit down the motor cyclist and thereby the accident occurred requires no interference. Rashness and negligence on the side of the driver of the van is evident. 5. Ext.P7 coupled with Exts.P3 and P4 and the evidence of Pw.8 would show that Kunhirama Pilla sustained grievous hurt including crushing of the skull and brain matter protruding out. Death occurred on the spot. Pw1 had deposed that the revision petitioner was the driver of the tempo van. That evidence was not at all challenged in the cross examination. The learned counsel for the revision petitioner also submitted that he was not disputing the identity of the revision petitioner as the driver of the tempo van. So, the courts below was right in relying upon the evidence on record and to come to the conclusion that the revision petitioner was driving the tempo van bearing Crl.R.P.No.4224 of 2007. -: 9 :- registration No.KL-10/F 7597 in a rash and negligent manner, so as to endanger human life and hit against the motor cycle ridden by late Kunhirama Pilla causing instantaneous death. Offence under Sections 279 and 304A IPC is well established. The conviction entered by the courts below for the above offences is unassailable. 6. As regards the allegation of offence under Sec.3 (1) r/w.181 of the Motor Vehicles Act, ie., driving the vehicle without licence, no evidence was seen adduced by the prosecution. There is no evidence regarding any investigation with the Motor Vehicles Department as to whether the revision petitioner had a licence or not. It is alleged that the revision petitioner had a driving licence, but the validity was lost by expiry. However, the prosecution has not seized the driving licence. So, I find that the conviction for offence under Sec.3(1) r/w.181 of the Motor Vehicles Act is not sustainable and is liable to be set Crl.R.P.No.4224 of 2007. -: 10 :- aside. 7. As regards the sentence for offence under Sec.279 and 304A IPC, the learned counsel submitted that there is no antecedents against the revision petitioner and that he is entitled to leniency in sentence. The revision petitioner is stated to be 32 years old on the date of occurrence. Having due regard to the manner in which the accident occurred, I find that this is not a fit case to invoke the provisions of the Probation of Offenders Act. The lower appellate court was very lenient in reducing the sentence to simple imprisonment for three and six months respectively. Any more reduction would turn it to be a flee-bite sentence. It would give a wrong signal and would make the criminal justice delivery system a mockery. Taking note that road traffic accidents are increasing day by day, I am not inclined to interfere with the sentence any more as requested by the learned counsel for the revision petitioner. Crl.R.P.No.4224 of 2007. -: 11 :- In the result, the revision petition is allowed in part. While confirming the conviction and sentence for offence under Sec.279 and 304A IPC, the conviction and sentence for offence under Sec.3(1) r/w.181 of the Motor Vehicles Act are set aside. The fine, if any, remitted by the revision petitioner on that count shall be refunded. The revision petitioner shall surrender forthwith before the trial court for execution of sentence. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN (Judge) Kvs/-