IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 Crl.Rev.Pet.No. 753 of 2002() ----------------------------- CRA.68/1997 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.472/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED: ------------------------------------------------------------------------ SELVARAJ, S/O. BHAGYANATHAN, ONDIKARAN VEEDU, PUZHAPALAM, MENON PARA P.O. PALGHAT. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT(S): RESPONDENT PROSECUTION: ------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE, ALATHUR POLICE STATION. PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1.4.2011, THE COURT ON 01/04/2011 PASSED THE FOLLOWING: V.K. MOHANAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.R.P. No. 753 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of April, 2011 J U D G M E N T The second accused in C.C. 472/1994 in the Court of Judicial First Class Magistrate Court, Alathur is the revision petitioner and he challenges his conviction and sentence u/s 279, 337, 338 and 304 A of IPC in this revision petition. 2. The prosecution case is that on 17.3.1994 at about 11.30 pm the vehicle bearing registration No.KRF 6188 driven by the revision petitioner who is accused No.2 hit behind the lorry bearing registration No.TDW 7857 which was driven by the first accused. Due to the sudden break of the lorry by the first accused and because of the negligence of the revision petitioner, one Dineshkumar, who was traveling in the jeep along with PWs 1 and 2 died in that accident. Other witnesses sustained injuries and thus the revision petitioner has committed the offences punishable u/s 279, 337, 338 and 304 (A) IPC. Crl.R.P.No.753 of 2002 : 2 : 3. On the basis of above allegation crime No.55/94 was registered in Vadakkanchery Police station for the said offences and after investigation the police preferred a report, based on which cognizance was taken against the accused and accordingly instituted CC.No.472/1994. During trial of the above case PWs 1 to 11 were examined and Ext.P1 to P13 were produced and marked from the side of the prosecution. No evidence, either oral or documentary produced from the side of the defence. The trial court after consideration of prosecution case as well as defence and the evidence and materials, found that the 1st accused failed to exercise proper care and caution to guard against the risk of collision by the vehicle coming behind while applying sudden break. The trial court further found that the second accused the revision petitioner herein failed to exercise that care while driving vehicle behind another vehicle. Thus the prosecution has proved beyond reasonable doubt the the accident happened on account of negligent driving of accused No.1 and 2 and accordingly they are convicted for the said offences. On such conviction both the accused are sentenced to Crl.R.P.No.753 of 2002 : 3 : undergo rigorous imprisonment for one year u/s. 304(A) IPC and they are also sentenced to a fine of Rs.1000/- u/s 279 IPC, Rs.500/- u/s 337 IPC, Rs.1000/- u/s 338 IPC and in default of paying fine, they are directed to undergo simple imprisonment for one month each u/s 279, 337 and 338 of IPC. They are also disqualified to drive any kind of motor vehicle for a period of 6 months. 4. Challenging the above findings and conviction and sentence both the accused have preferred separate appeals. The 1st accused preferred Crl.M.A. 76/97 and revision petitioner who is the 2nd accused preferred Crl.M.A.68/97. By a common judgment dated 31.5.2002 the Court of additional Sessions Judge, Fast Track Court No.1 Palakkad allowed the appeal preferred by the 1st accused. But in the case of the revision petitioner while confirming the conviction, the sentence was modified. Accordingly, the revision petitioner herein is sentenced to undergo simple imprisonment for six months u/s 304 (A) IPC and to pay a fine of Rs.1000/- and in default to undergo simple imprisonment for one month. The sentence to pay fine and default sentence with respect to other Crl.R.P.No.753 of 2002 : 4 : offence are confirmed by the appellate Court. The suspension of driving license of the revision petitioner ordered by the trial Court also upheld by the Sessions Court. It is the above judgment of the trial Court as well as appellate Court challenged by the revision petitioner. 5. I have heard both the learned counsel appearing for the revision petitioner and the learned Public Prosecutor. 6. Learned counsel for the revision petitioner vehemently submitted that the sole reason for the accident was the applying of sudden break by 1st accused who drove the lorry of which the vehicle driven by the revision petitioner was following. According to the learned counsel during the night with out giving any signal A1 stopped the vehicle all of a sudden which resulted in hitting the jeep driven by A2 behind the back of lorry driven by A1. After taking me through the deposition of PW1 the learned counsel submitted that the evidence of PW1 itself would show that the revision petitioner had taken reasonable care and caution while driving the vehicle in question and therefore, none of the offence alleged against Crl.R.P.No.753 of 2002 : 5 : the revision petitioner is attracted. 7. On the other hand the learned public prosecutor submitted that, had the revision petitioner maintained a reasonable distance and speed from the lorry driven by A1, the accident would not have been taken place as a result of which one of the passengers of the jeep would not have died. According to the learned public prosecutor the trial court as well as the appellate Court are perfectly justified in their findings, conviction and sentence against the revision petitioner. 8. I have carefully considered the arguments of learned counsel appearing for the revision petitioner as well as the learned public prosecutor. I have also carefully gone through the judgments of Courts below and perused the evidence and materials available on record. 9. The main contention advanced by the learned counsel for the revision petitioner is that the sole reason for the accident was that the applying of sudden break by A1 who was driving the lorry. Another contention taken by the counsel is to the effect that no Crl.R.P.No.753 of 2002 : 6 : signals was given by A1 before applying the sudden break. It is also the case of the learned counsel that no red light of the lorry happened to see, either by the revision petitioner or any of the passengers in his vehicle, on applying sudden break by A1. 10. I am unable to sustain the above contentions. The specific prosecution case is that A1 who was driving the lorry applied sudden break and A2 who was driving the jeep without keeping reasonable distance hit on the back of the lorry driven by A1 and both A1 as well as A2 were negligent in driving of vehicle and as a result of which the accident had taken place. It is a fact that the jeep which was driven by the revision petitioner was going in the same direction during the night along the national highway and therefore, as far as the revision petitioner is concerned it was his bounden duty to maintain a reasonable distance from the vehicle going in front of it. PW1 has categorically stated during his cross examination that: “KqO W]SsLo}ã¡ AWRsRv\ÿV fRÐ SsLr]Rp WºO. B yopU SsLr]pOU Na¨rOU fÚ]¤ k¾V o}ã¡ c]yVã¢yV Bp] qOÐO. yUnvyopU BpSÕLSu¨OU B c]yVã¢yV oPÐV o} ã¡ Bp]qOÐO. SsLr] SNm¨VR\pVfV j]¡¾OÐfV `L¢ èÈ] Crl.R.P.No.753 of 2002 : 7 : \ÿO. SsLr]pORa SNm¨VRRsãV W¾]pfLp] `L¢ Wº]sæ.'' The above fact itself is sufficient to show that though the vehicle driven by A1 had stopped which was seen by PW1, the revision petitioner did not reduce the speed and applied the break of vehicle which was driven by him, so as to keep a reasonable distance between the two vehicles. The evidence of PW1 is positive in nature which shows that the high speed driving by the revision petitioner just before the accident resulted in the accident. According to PW1 initially there was a distance of 10 meter between the lorry and the jeep and the same gone down to the distance of 3 meter. Under the above circumstances it cannot be said that the revision petitioner had taken precaution and care in his driving. Though PW1 has stated that he did not see the break light of the lorry that does not mean that there was no red light as result of the break applied by A1 in his vehicle. According to PW1 he does not know whether the revision petitioner had applied the break of his vehicle. No doubt had the revision petitioner applied the break that would have been noticed by PW1 who was the passenger of the same vehicle. PW1 has Crl.R.P.No.753 of 2002 : 8 : further stated that when break was applied by A1 who was driven the lorry, A2 tried to take the trucker to the right side. On the basis of the above version of PW1 the attempt of counsel for the revision petitioner that the revision petitioner had also took precaution or tried to prevent the accident by taking the vehicle to right side. In the given facts and circumstances of the case, I am of the view that even though the revision petitioner had tried to take the trucker to his right side, it is not sufficient to hold that, he had applied reasonable care and there was no negligence. The entire facts and circumstances has to be appreciated in toto especially in view of the evidence given by PW1. He had stated that when they saw the lorry there was a distance of 10 meter and the lorry had stopped. It was also the evidence of PW1 that the distance between the trucker and the lorry came down to the distance of 3 meter immediately before the accident. The above facts would positively show that the revision petitioner did not take any steps to reduce the speed but the trucker was moving close to the lorry and finally as there was no other option, the revision petitioner tried to take the vehicle to the Crl.R.P.No.753 of 2002 : 9 : right side which resulted in the hit against the back of the lorry. From the above facts, according to me there was callous negligence on the part of the revision petitioner and the trial Court as well as the appellate Court perfectly justified in their findings against the revision petitioner. Thus I find no reason to interfere with the concurrent finding and conviction recorded by the Courts below and I confirm the same. 11. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the revision petitioner is now crossed age of 50 years and therefore, a lenient view may be taken in the matter of sentence. The above submission according to me requires positive consideration. 12. In this juncture it is relevant to note that the accident was taken place on 17.3.1994 and one of the passengers of the trucker driven by revision petitioner died as a result of this accident. It is true after the date of the accident now more than 17 years are over. But the fact remain is that one of the passengers of the trucker, namely Dineshkumar is no more. Therefore, according to me, the Crl.R.P.No.753 of 2002 : 10 : sentence of imprisonment u/s 304 (A) of IPC modified by the appellate Court can be modified and reduced into one day simple imprisonment and the sentence to pay fine u/s 304 (A) IPC can also be set aside. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment for one day that is till the rising of the Court and he is directed to pay a compensation of Rs.50,000/- (Rupees fifty thousand only) to the legal heirs of deceased Dineshkumar u/s 357(3) of Cr.P.C. and in default he is directed to undergo simple imprisonment for six months. Accordingly the revision petitioner is directed to appear before the trial Court on 23.5.2011 to receive the modified sentence of imprisonment and to pay the compensation amount as directed by this Court. If there is any failure on the part of the revision petitioner in appearing before the trial Court and in paying the above compensation amount on the above date, the trial Court is directed to take coercive steps to secure the presence of the revision petitioner and to realise the compensation from the revision petitioner and to execute the sentence. On remitting the above amount of compensation, the Crl.R.P.No.753 of 2002 : 11 : same shall be given to the legal heirs of the deceased, Dineshkumar as compensation u/s 357 (3) of Cr.P.C. (V.K.MOHANAN, JUDGE) kp