IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 62 of 2003() ---------------------------- CRA.69/2001 of ADDL.SESSIONS COURT, KOTTAYAM CC.592/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KUTTAN, AGED 43, S/O.KUNJUPENNU, PORKUNNEL HOUSE, MANJOOR SOUTH BHAGOM, MANJOOR KARA, MANJOOR VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.MURALI PURUSHOTHAMAN 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 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.62 OF 2003 --------------------------------------------- Dated 24th June, 2010 O R D E R Petitioner, the accused in C.C.592/1998 on the file of Judicial First Class Magistrate-I, Kottayam was convicted and sentenced to simple imprisonment for six months for the offenceS under Section 304 A of Indian Penal Code, for simple imprisonment for two months for the offence under Section 279 and simple imprisonment for one month for the offence under Section 337 of Indian Penal Code. He was disqualified to drive the vehicle for six months under Section 20 of Motor Vehicles Act. All the substantive sentences were directed to be run currently. Petitioner challenged the conviction and sentence CRRP 62/03 2 before Additional Sessions court, Kottayam in Crl.A.69/2001. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and Learned Public Prosecutor were heard. 3. Argument of the learned counsel is that identity of the petitioner as the driver of the lorry involved in the accident was not established. Argument is that none of the witnesses including PW11 who was examined to prove that he is the owner of the lorry, KL-13-A.16, involved in the incident identify the petitioner as the driver and in such circumstances, conviction of the petitioner is unsustainable. Learned counsel appearing for CRRP 62/03 3 the petitioner also argued that there is no evidence to prove that the lorry was driven so as to endanger human life or by such driving of the lorry hit on the jeep and caused death of one of the passengers and injury to the driver of the jeep and in such circumstances, the conviction is not sustainable. 4. Learned Public Prosecutor submitted that both the trial court and the appellate court considered the evidence in detail and it is established that the incident occurred 1.48 meters to the south of the northern road margin and road is lying east-west and lorry was proceeding from east to west and jeep was driving from west to east and the proper side of the lorry was on the southern side and fact that the lorry hit on the jeep 1.48 meters from the northern tarred end establishes that it was CRRP 62/03 4 proceeding along the wrong side. It is pointed out that evidence of PW3 the driver of the jeep establishes that the lorry overtook a bus negligently and thereafter hit on the jeep and in such circumstances, it is conclusively proved that the incident occurred only due to the rash and negligent driving of the lorry. Learned Public Prosecutor pointed out that though witnesses did not identify the petitioner as the driver, PW.13 investigating officer has sent notice to PW11 owner of the lorry to furnish details of the driver which he is bound to maintain under Rule 350 of Kerala Motor Vehicles Rule, 1989 and Ext.P8 reply was sent stating that petitioner was driving the lorry and in such circumstances, his conviction is perfectly legal. 5. Ext.P2 scene mahazar establishes CRRP 62/03 5 that the road at the scene of occurrence is lying east-west and is having width of 6.48 meters. The lorry hit on the jeep 1.48 meters to the south of the northern tarred end. Lorry was proceeding from east-west and jeep proceeding from west to east. It is thus clear that lorry hit on the jeep on the proper side of the jeep, which was proceeding from west to east but on the wrong side of the lorry. Though the evidence of PWs.1 and 2 do not establish that cause of the incident is the negligent driving of the lorry, evidence of PW3 the driver of the jeep establishes that, at the scene of occurrence the lorry overtook a bus and thereafter hit on the jeep causing death of one of the passengers and injury to PW3. On the evidence, courts below rightly found that the lorry hit on the bus only due to rash CRRP 62/03 6 and negligent driving of the lorry by its driver. 6. Fact that one of the passengers died due to injuries sustained is not disputed at the time of evidence Ext.P15 postmortem certificate with the evidence of PW14 the Assistant Professor of Forensic Medicine who conducted the autopsy establishes that fact. Evidence of PW8, with Exts.P4 and P5 wound certificates with the evidence of PWs.1 and 2 establish that they sustained injuries in the incident. Therefore, it is established that due to the rash and negligent driving of the lorry by the petitioner it hit on the jeep and caused the death of one of the passengers of the jeep and also voluntarily caused hurt to PWs.1 and 2. 7. Then the question is regarding the CRRP 62/03 7 identity of driver of the lorry. Argument of the learned counsel is that as none of the witnesses identified petitioner as the driver of the lorry the conviction is unsustainable. Learned Magistrate and learned Sessions Judge relied on Ext.P8, the details furnished by PW11, in answer to Ext.P7 notice directing him to furnish the details of driver who was driving the lorry, on the date and time of the incident and also Ext.P12 GVR of the lorry seized under Ext.P11 mahazar. Evidence of PW13 established that he sent Ext.P7 notice to the registered owner of the lorry. PW11 on receipt of the notice, sent Ext.P8 reply disclosing the details of the driver. Ext.P11 mahazar, with the evidence of PW13 establishes that under Ext.P11, Ext.P12 GVR of the lorry was seized by the investigating officer. Exts.P8 and P12 show CRRP 62/03 8 that the lorry was driven by Kutan. Though in Ext.P12 details of Kuttan is not mentioned, Ext.P8 reply contained the entire details. Argument of the learned counsel is that based on Ext.P8 alone identity cannot be fixed as Kuttan therein is shown as son of Sankaran and the petitioner is the son of Kunjupennu. Argument, at first blush appears attractive. But when the plea of the petitioner was recorded by the Magistrate, he has disclosed his profession as driver and that he is son of Sankaran. Therefore, there is absolutely no doubt with regard to identity of the petitioner for showing the name of his mother in the final report and name of the father in the other records. Kuttan shown in Ext.P12 as well as in Ext.P8 reply furnished by PW11 is the petitioner. In such circumstances, I find CRRP 62/03 9 no illegality or irregularity in the finding of the learned Magistrate and the learned Sessions Judge that petitioner was driving the lorry at the relevant day and time. In such circumstances, conviction of the petitioner for the offence under Sections 304 A and 337 of Indian Penal Code is perfectly legal and warrants no interference. 8. Then the only question is regarding the sentence. Argument of the learned counsel is that considering the fact that petitioner was not involved in any other offence and the incident was in 1997, at this distant point of time, petitioner may not be sent to prison. It was submitted that threat of imprisonment was hanging over the head of the petitioner for more than a decade and in such circumstances, leniency may be shown. CRRP 62/03 10 9. Offence under Section 304A warrants a proper sentence. Fact that petitioner was succeeded in protracting the trial, appeal and revision is not a ground to interfere with the sentence on the ground that threat of the sentence was hanging over the head of the accused. But considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence for the offence under Section 304 of Indian Penal Code is reduced to simple imprisonment for three months and maintaining the sentence for the offence under Sections 279 and 337 of Indian Penal Code, in view of the fact that all the sentences are concurrent. Revision is allowed in part. Conviction for the offence under Sections 304 A, 279 and 337 of Indian Penal Code is confirmed. Sentence CRRP 62/03 11 for the offence under Section 337 and 279 of Indian Penal Code is confirmed. Sentence for the offence under Section 304 A is modified to simple imprisonment for three months. He is entitled to set off under Section 428 of Code of Criminal Procedure . Petitioner is directed to appear before the Judicial First Class Magistrate-I, Kottayam on 28/7/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.