IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 Crl.Rev.Pet.No. 831 of 2002(C) ------------------------------------------- CRL.A.NO.98/1999 OF III ADDL.SESSIONS COURT, KOLLAM, CC.NO.492/1994 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY. .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- BRAHMADEVAN, S/O. KRISHNAN, AMBILI BHAVANAM, ADINADU THEKKU MURI, KULASEKHARAPURAM VILLAGE. BY MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, ADV. SMT.BINDU SREEKUMAR. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.831 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2009 ORDER The revision petitioner is the accused in C.C.No.492/1994 of Judicial First Class Magistrate Court, Karunagapally and appellant in Crl.Appeal No.98/99 of III Additional Sessions Court, Kollam. He was convicted under Section 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for one month under Section 279 of IPC and to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for one month under Section 337 of IPC and to pay a fine of Rs. 500/- , in default, to undergo simple imprisonment for 15 days under Section 134(a) and (b) of Motor Vehicles Act. The substantive sentences were ordered to run concurrently. Fine amount, if realised was ordered to be paid to PW2 as compensation. On appeal, his conviction and sentence was confirmed. The accused has now Crl.R.P.No.831/02 Page numbers come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on June 7, 1994 at about 12.30 pm, the accused drove his scooter bearing Reg. No. KL-2A/5914 in a rash and negligent manner so as to endanger human life along Sasthamcotta- Karunagappally road and when he reached at Padanayarkulangara thekkum muri, he knocked down a boy aged 5 named Vishnu causing him fracture on his right knee and that he did not render any medical aid or informed the police and that thereby committed the offences punishable under Section 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act. 3. The accused on appearance before the trial court pleaded not guilty to a charge under Section 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act. PWs 1 to 5 were examined and Exts.P1 to P5 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied the accusation. DW1 was examined on his side. Crl.R.P.No.831/02 Page numbers 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Heard the counsel for revision petitioner and the learned Public Prosecutor. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh? Point No.1 6. PWs 1 to 5 were examined and Exts.P1 to P5 were marked on the side of the prosecution before the trial court to prove the guilt of Crl.R.P.No.831/02 Page numbers the accused. PW1 is the owner of the scooter involved in the accident. He gave Ext.P2 letter to the investigating officer stating that it was the accused who has driven the scooter at the time of accident though in evidence he stated that he did not know who was the driver of the scooter at the time of the accident. Ext.P2 clearly shows that it was the accused who has driven the scooter at the time of accident. PW2 is the mother of the injured. She along with the injured was waiting on the side of Sasthamcotta -Karunagappally road in front of one Brother's Bakery for crossing the road when the accident happened. She had given the number of the scooter and identified the accused in court. PW3 is the independent witness who supported PW2 on all material particulars. Though the counsel for the revision petitioner pointed out some discrepancies in their evidence, I am not inclined to discard their evidence on that ground. The trial court has chosen to believe their evidence. I find no reason to come to a different conclusion. PW4 is the motor vehicle inspector who inspected the scooter involved in the accident and gave the certificate Ext.P4. PW5 is the Police Constable who had recorded the FI statement. Crl.R.P.No.831/02 Page numbers 7. Counsel for the revision petitioner mainly argued that the Doctor who treated the injured boy was not examined and wound certificate was also not marked and that further the investigating officer in this case was also not examined and that therefore benefit of doubt should be given to the accused. I am not inclined to accept the above contention. By not examining the doctor or the investigating officer, no prejudice is caused to the accused. That apart Ext.P2 letter given by PW1 and the evidence of PW2 and PW3 shows that it was the accused who was driving the offending scooter at the time of the accident. Further while the injured boy was standing on the side of the road, he was knocked down by the accused which itself shows that there was negligence on th part of the accused. Thus, it is proved by the evidence of PWs 2 and 3 that the accident occurred due to the rash and negligent driving of the offending scooter by the accused. Therefore, I am inclined to confirm the conviction of the accused under Sections 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act which is confirmed in appeal. 8. As regards the sentence, the trial court sentenced the Crl.R.P.No.831/02 Page numbers accused to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for one month under Section 279 of IPC and to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for one month under Section 337 of IPC and to pay a fine of Rs. 500/- , in default, to undergo simple imprisonment for 15 days under Section 134(a) and (b) of Motor Vehicles Act which is confirmed in appeal. Taking into account the fact that the incident occurred in 1994 and that the injured boy sustained only simple injuries and that the charge is only under Section 337 of IPC, I feel that the sentence of imprisonment imposed can be reduced to imprisonment till the rising of court. As regards the sentence of fine imposed by the trial court which is confirmed is maintained. Counsel for the revision petitioner submitted that fine portion of the sentence is already deposited by the accused before the trial court. They same shall be paid to PW2 as compensation as provided under Section 357(1) Cr.P.C. as directed by trial court. In additional to that amount, Rs. 2500/- shall be paid by the accused to Crl.R.P.No.831/02 Page numbers PW2 as compensation as provided under Section 357(3) of Cr.P.C. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 279 and 337 of IPC and Section 134 (a) and (b) read with Section 187 of Motor Vehicles Act which is confirmed in appeal is upheld. Sentence of imprisonment imposed by the trial court which is confirmed in appeal is reduced to imprisonment till the rising of court. The sentence of fine imposed by the trial court which is confirmed in appeal is maintained. In addition to the fine amount, Rs. 2500/- shall be paid by the accused to PW2 as compensation as provided under Section 357(3) Cr.P.C., in default, to undergo simple imprisonment for two months. His bail bonds are cancelled. One month's time is granted for payment of fine and compensation. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.831/02 Page numbers