IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Crl.Rev.Pet.No. 127 of 2003 -------------------------------------------- CRA.86/1999 of ADDL. DISTRICT COURT (FAST TRACK-II) MANJERI ST.1222/1999 of JFCM-I, MANJERI .................... REVN. PETITIONER/APPELLANT/ACCUSED: NEYYAPPADAN ASHARAF, S/O. MOHAMMED, NEYYAPPADAN HOUSE, KALIKAVU, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/COMPLAINANT/STATE: THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALIKAVU POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.353/2003 IN CRRP 127/2003 DISMISSED 28.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.127 of 2003 -------------------------- ORDER Petitioner, the accused in S.T.No.1222/1999 on the file of Judicial First Class Magistrate's Court-I, Manjeri, was convicted and sentenced to rigorous imprisonment for one month for the offence under Section 279 of Indian Penal Code and rigorous imprisonment for three months for the offence under Section 337 of Indian Penal Code and rigorous imprisonment for fifteen days for the offence under Section 134(b) read with Section 187 of Motor Vehicles Act. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.No.86/1999. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRRP 127/03 2 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and identity of the petitioner, as the driver of the autorickshaw involved in the incident, was not proved. It was argued that the incident occurred due to the negligence of PW1, the injured, in crossing the road without taking care and not due to the negligent driving of the vehicle and therefore, the conviction is not sustainable. It is finally argued that in any case the sentence awarded is excessive and it may be modified and petitioner is prepared to pay compensation to the injured. 4. Learned Public Prosecutor submitted that the trial court and the appellate court appreciated the evidence in the proper perspective and PW1 was hit by the autorickshaw 7.2cm away from the eastern tarred end and the evidence establishes that it was only due to the rash and negligent driving of the petitioner, the autorickshaw hit on PW1 causing CRRP 127/03 3 hurt to him and therefore, conviction is perfectly legal. 5. Prosecution case is that on 27.11.1996 at about 6.45 p.m., petitioner was driving autorickshaw KL-10/D 7801 along Kalikavu- Karuvarakundu Public Road. PW1 was standing on the eastern road margin waiting for the bus. Due to the rash and negligent driving of the petitioner, autorickshaw hit on PW1 causing hurt to him and he was taken to the hospital. The Doctor who examined him issued Exhibit P4 wound certificate. Prosecution case is that petitioner was driving the autorickshaw in a rash and negligent manner so as to endanger human life and by such driving, voluntarily caused hurt to PW1 and thereby committed the offences under Sections 279 and 337 of Indian Penal Code. It is also contended that in spite of the fact that PW1 was injured due to the rash and negligent driving of the petitioner, he did not inform the police about the incident and CRRP 127/03 4 thereby violated Section 134(b) of Motor Vehicles Act. 6. Petitioner pleaded not guilty. Prosecution examined PW1, the injured and PWs 2 to 4, the eye witnesses and PWs 5 to 11 and marked Exhibits P1 to P6. Petitioner did not adduce any evidence. 7. Learned Magistrate and learned Additional Sessions Judge accepted the evidence of PWs 1 to 4 and found that PW1 sustained injuries, recorded in Exhibit P4 wound certificate, when he was hit by the autorickshaw driven by the petitioner and petitioner was driving the autorickshaw rashly and negligently so as to endanger human life and by such driving voluntarily caused hurt to PW1. This revision is filed challenging the concurrent conviction and sentence. 8. Evidence of PW1, the injured, with Exhibit P4 wound certificate, establish that he sustained the injuries, noted in Exhibit P4 wound certificate, when he was hit by an autorickshaw at CRRP 127/03 5 about 6.45 p.m. Evidence of PW6, the Doctor attached to District Hospital, Manjeri, establishes that he examined PW1 and found abrasion 2 x 2 cm on the interior aspect of right foot and PW1 had complained of pain and there was tenderness and swelling on the right knee and the alleged cause of injuries was hit by an autorickshaw at 6.45 p.m. at Kalikavu. Evidence of PW1 is that he was standing on the eastern road margin when the autorickshaw came negligently and hit him. PWs 2 and 3, the eye witnesses, also deposed that they had seen PW1 standing on the side of the road and PW1 was hit by the autorickshaw. Though learned counsel argued that identity of the petitioner, as the driver of the autorickshaw, was not established, learned Magistrate and learned Additional Sessions Judge, on the evidence of PWs 1 to 3, found that petitioner was driving the autorickshaw. True, in the light of the evidence of PW1 that he was told by the persons gathered there that petitioner was CRRP 127/03 6 driving the autorickshaw, it cannot be said, on the evidence of PW1, that identity of the petitioner, as the driver of the autorickshaw, was established. When PW1 was examined, he identified the petitioner as the driver of the autorickshaw. Based on his evidence, it cannot be said that petitioner was driving the autorickshaw. But, that is not the case with PWs 2 and 3. Evidence of PW2 establishes that he was standing on the western side of the road and he found PW1 standing on the eastern road margin waiting for the bus and an autorickshaw hit on PW1 and when he rushed to the spot, he saw PW1 lying in front of the autorickshaw. PW2 identified the petitioner as the driver of the autorickshaw. That evidence of PW2 was not seen challenged in cross- examination. When PW2 reached the spot, as deposed by him, PW1 was lying in front of the autorickshaw and he had opportunity to identify the petitioner as the driver of the autorickshaw. When that evidence was not challenged, petitioner is not CRRP 127/03 7 entitled to dispute the identity. Added to this, PW3 has also identified the petitioner as the driver of the autorickshaw. In such circumstances, courts below were justified in finding that petitioner was driving the autorickshaw at the the relevant time. 9. Exhibit P3 scene mahazar establishes that road is lying north-south. The tarred road is having a width of 6.04 metres and on the eastern road margin there is a width of two metres and on the western road margin there is a width of 2.5 metres. According to PWs 1 to 3, autorickshaw hit on PW1 while he was standing on the eastern road margin. Exhibit P3 scene mahazar shows that the scene of occurrence is 7.2 cm to the east of the eastern road margin. It is thus clear that the autorickshaw hit PW1 at the eastern road margin. It corroborates the evidence of PWs 1 to 3 that PW1 was standing on the eastern road margin and therefore, the defence that PW1 sustained injuries CRRP 127/03 8 when he was hit by the autorickshaw while PW1 was negligently crossing the road has to be rejected, as rightly done by the courts below. Petitioner was rashly and negligently driving the autorickshaw so as to endanger human life and by such driving voluntarily caused hurt to PW1. Evidence also establish that petitioner did not inform the police about the injury caused to PW1. Therefore, petitioner has violated his duty as provided under Section 134(b) of Motor Vehicles Act, which is punishable under Section 187 of Motor Vehicles Act. In such circumstances, conviction of the petitioner for the offences under Sections 279 and 337 of Indian Penal Code and Section 134(b) read with section 187 of Motor Vehicles Act is perfectly legal. 10. Then the only question is regarding the sentence. The incident was on 27.11.1996. The sentence provided for the offence under Section 279 of Indian Penal Code is imprisonment for a term, CRRP 127/03 9 which may extend to six months or fine which may extend to one thousand rupees or both. The Sentence provided for the offence under Section 337 of Indian Penal Code is imprisonment for a term, which may extend to six months or fine, which may extend to five hundred rupees or both. Section 187 of Motor Vehicles Act provides that whoever fails to comply with the provisions of Section 132(1)(c) or Section 133 or Section 134, shall be punishable with imprisonment for a term, which may extend to three months or fine, which may extend to five hundred rupees or both. Prosecution has no case that petitioner was involved in any other offence under the Motor Vehicles Act or for negligent driving of the vehicle earlier to this incident. In such circumstances, interest of justice will be met if the sentence is modified to simple imprisonment for fifteen days and a fine of Rs.1,000/- for the offence under Section 279 of Indian Penal Code and simple imprisonment for seven CRRP 127/03 10 days and a compensation of Rs.5,000/- to PW1, the injured and in default, simple imprisonment for one month for the offence under Section 337 of Indian Penal Code and a fine of Rs.500/- for the offence under Section 134(b) read with Section Section 187 of Motor Vehicles Act. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 279 and 337 of Indian Penal Code and Section 134(b) read with Section 187 of Motor Vehicles Act is confirmed. The sentence awarded by the Magistrate, as confirmed by the Additional Sessions Judge, is modified. Petitioner is sentenced to simple imprisonment for fifteen days and a fine of Rs.1,000/- for the offence under Section 279 of Indian Penal Code and simple imprisonment for seven days and a compensation of Rs.5,000/- to be paid to PW1, the injured and in default, simple imprisonment for one month for the offence under Section 337 of Indian Penal Code and a fine of CRRP 127/03 11 Rs.500/- for the offence under Section 134(b) read with Section 187 of Motor Vehicles Act. Disqualification of the licence under Section 20 of Motor Vehicles Act is reduced to a period of three months. The substantive sentences shall run concurrently. Petitioner is directed to appear before Judicial First Class Magistrate-I, Manjeri on 29.07.2010. Magistrate is directed to execute the sentence. 28th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 127/03 12 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.127 of 2003 -------------------------- ORDER 28th June, 2010