IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.Rev.Pet.No. 421 of 2002() ----------------------------- CRA.228/1994 of SESSIONS COURT, MANJERI CC.280/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- NELLIKKAVATTAYIL ASHRAF,S/O.YOUSEF, VIYYAM KURUSSI P.O.,MANNARKKAD,PALAKKAD DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM , KOCHI-31 2. THE CIRCLE INSPECTOR OF POLICE, MALAPPURAM,MALAPPURAM DISTRICT PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2839/02 IN CRL.R.P.NO.421/02: CLOSED 8/7/2009 SD/- R. BASANT, JUDGE. //true copy// R. BASANT, J. ------------------------------------------------- Crl.R.P. No.421 of 2002 ------------------------------------------------- Dated this the 8th day of July, 2009 ORDER This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution for offences punishable under Secs.279, 337 and 304A IPC. The accused faces a sentence of simple imprisonment for a period of six months, six months and two years respectively for the said offences. 2. The crux of the allegations against the petitioner is that he was driving his vehicle - a lorry, from west to east along the public road from Palakkad to Kozhikode and when it reached the scene of the occurrence, it was engaged in a competition with another lorry proceeding in the front. The jeep driven by the deceased in which P.W.1 was a passenger was coming in the opposite direction i.e., from east towards west. It is the case of the prosecution that the accused was Crl.R.P. No.421 of 2002 -: 2 :- driving his vehicle at an excessive speed. He was allegedly involved in an attempt to overtake another lorry which was proceeding in the front. At the scene of the crime, the vehicle driven by the petitioner was suddenly taken to the right in an attempt to over take the said lorry which was going in the front. The driver of the jeep seeing the two vehicles coming in the opposite direction had tried to avoid collision by moving over to the left. But the vehicle driven by the petitioner hit against the jeep driven by the deceased. Injuries were suffered by the deceased as also P.W.1. The deceased succumbed to his injuries; whereas P.W.1 suffered simple injuries. 3. According to the prosecution, the accident occurred solely due to rashness, negligence and excessive speed on the part of the revision petitioner/accused. A crime was registered on the basis of Ext.P1 - First Information Statement lodged by P.W.1 promptly after the incident. P.W.11 conducted the investigation. He filed the final report. Cognizance was taken by the learned Magistrate. The accused denied the offences alleged against him. Thereupon, the prosecution examined P.Ws.1 to 11 and proved Exts.P1 toP12. No material objects were marked. Crl.R.P. No.421 of 2002 -: 3 :- 4. P.W.1 is the injured passenger in the jeep. Ext.P1 is the First Information Statement lodged by him. P.W.2 is only the other eye witness examined. He was allegedly present at the scene of the crime. Both P.Ws.1 and 2 supported the prosecution case. P.W.3 is the Doctor who examined P.W.1 as well as the deceased and issued Exts.P2 and P3 wound certificates. P.W.4 Doctor conducted the post-mortem examination and issued Ext.P4 post-mortem certificate. P.W.5 - the Motor Vehicle Inspector inspected both the vehicles after the incident and issued Exts.P5 and P6 inspection reports. Ext.P7 is the sketch prepared by P.W.5 about the location of the road and also the vehicles after the incident. P.Ws.6 and 7 are the attestors to Ext.P8 scene mahazar. P.W.8 is the attestor to Ext.P9 inquest report prepared by the Investigating Officer. P.W.9 is the Head Constable who had taken the dead body for post-mortem examination. P.W.10 had only came to know of the incident later. P.W.11 Investigating Officer completed the investigation and filed the charge sheet. He proved Exts.P10 to 12. Ext.P10 is the FIR; Ext.P11 is the report submitted by the police and Ext.P12 series are the photographs of the scene of occurrence and negatives. Crl.R.P. No.421 of 2002 -: 4 :- 5. In the course of cross-examination, the accused took up a defence that the accident did not take place on account of his negligence. According to him, the jeep was carrying illicit sandal logs and was proceeding at an excessive speed to avoid interception and detection by the police officials. According to the accused, the boot was on the other leg and it was the negligence of the deceased which caused the accident. No defence evidence was adduced by the accused. 6. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all the offences alleged against the accused. Accordingly, they proceeded to pass the impugned concurrent judgments. 7. Before me, the learned counsel for the petitioner/accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned concurrent verdict of guilty, conviction and sentence on the following grounds: (i) The courts below erred in accepting and acting upon the oral evidence of P.Ws.1 and 2. (ii) The courts below ought to have held that, at any rate, the accused is entitled for the benefit of doubt and that the oral Crl.R.P. No.421 of 2002 -: 5 :- evidence of P.Ws.1 and 2 is not supported by the nature of the damage found on the vehicles described in Exts.P5 and P6. (iii) The sentence imposed is excessive. 8. Ground Nos.(i) & (ii): Primarily, we have the oral evidence of P.Ws.1 and 2. No serious dispute is raised against the evidence that an accident had actually taken place and the petitioner was the driver of the lorry and the deceased was the driver of the jeep involved in the accident. The learned counsel contends, first of all, that reliance should not have been placed on the oral evidence of P.Ws.1 and 2. P.W.1 is an injured. He was taken to the Doctor - P.W.3 and the wound the certificate was prepared by the doctor showing the injuries suffered by him. In these circumstances, the version of P.W.1 that he was present at the scene of the occurrence and had suffered the injuries in the accident cannot be doubted or discarded. P.W.2 claims to be an eye witness. According to him, he was present at the scene of occurrence. Though it is contended that P.W.2 has close relationship with the father of the deceased, there is no tangible material to establish, indicate, probabilise or suggest the truth of such a version. 9. The appreciation of oral evidence in an accident case Crl.R.P. No.421 of 2002 -: 6 :- must perhaps start only after the scene mahazar is studied properly. Ext.P8 is the scene mahazar prepared. Ext.P7 is the sketch. The road lies in the east-west direction roughly. The jeep driven by the deceased was proceeding from east towards west. The vehicle driven by the petitioner/accused was proceeding from west to east. It is the very consistent case that two similar lorries - one driven by the petitioner herein and the other proceeding in front, had come from west towards east. It is the case of the prosecution that the vehicle driven by the accused was suddenly taken to the right hand side of the road in a mad attempt to over take the other lorry which was proceeding in front. The tarred road at the scene of the crime has a width of 6.35 Mtrs. The road is straight with clear visibility on either side of the spot of the impact. The accident took place at a spot 2.3 Mtrs. to the north of the southern kerb of the tarred road. The imaginary mid-line lies at a distance of 3.175 Mtrs. from either kerb of the tarred road. The spot of the incident is located at a distance of 2.3 Mtrs. from the southern kerb (northwards) and that clearly shows that the lorry driven by the accused was coming in the opposite direction along the wrong side of the road - i.e., at about 87.5 cms. to the right of the Crl.R.P. No.421 of 2002 -: 7 :- imaginary mid-line. In addition to that, the scene mahazar clearly shows that there was a tyre mark of length exceeding 14 Mtrs. to the west of the point where the lorry driven by the accused had come to a halt. This must gives the court an idea of the speed and momentum of the vehicle. 10. The oral evidence of P.Ws.1 and 2 must, in these circumstances, be appreciated in the light of the clinching material available at the scene of the crime. The facts perceived by the Investigating Officer described in Ext.P8 scene mahazar clearly support the version of P.Ws.1 and 2. The vehicle driven by the petitioner was on the wrong side of the road. Despite the application of sudden brakes, the lorry driven by the petitioner did not stop for a distance exceeding 14 Mtrs. The vehicle driven by the petitioner/accused, it is evident, was involved in an attempt to over take another similar vehicle proceeding in the front. 11. It will certainly be necessary for the vehicles to overtake other vehicles on the road. But negligence is the breach of a duty to take care and rashness is the gross disregard of the consequences which a person is aware of. When a driver wants to take his vehicle to his right hand side (wrong side) of Crl.R.P. No.421 of 2002 -: 8 :- the road to facilitate overtaking of another vehicle, that driver must show the requisite care and caution. The duty on his part to take care is much higher at that point because he is straying over to his right hand side of the road which must clearly be reserved for vehicles coming in the opposite direction. The fact that the spot of impact is located clearly to the right of the imaginary mid-line and the fact that despite application of sudden brakes the vehicle did not stop for a distance of exceeding 14 Mtrs. is, according to me, sufficient to tilt the scales in favour of the acceptance of the oral evidence of P.Ws.1 and 2. At any rate, I find no reason to interfere with the concurrent findings of fact entered by the courts below on this crucial aspect – that P.Ws.1 and 2 can be believed. 12. The learned counsel for the petitioner contends that the damage noted on the lorry described in Ext.P5 inspection report is inconsistent with the oral evidence of P.Ws.1 and 2 that the contact was between the front right side of the lorry and the front right side of the jeep. The description of the damage on the lorry suggests that the damage was not exactly on the front of the lorry; but on the right side – a little towards rear from the front. Crl.R.P. No.421 of 2002 -: 9 :- 13. The oral evidence of a witness cannot be understood and appreciated as the words in the statute are understood. When the witness said that there was an impact between the two vehicles coming in the opposite direction and that the front right side of the two vehicles were involved accident, that version cannot be discarded merely because the lorry driver had avoided the head on impact with the vehicle coming in the opposite direction by swerving his vehicle to the left. The nature of damage suffered by the lorry – on the right side towards rear is hence not sufficient to destroy the prosecution case or to persuade this Court to reject the oral evidence of P.Ws.1 and 2. 14. The oral evidence of P.Ws.1 and 2, when accepted in the light of Ext.P1 – First Information Statement as also the available inputs in Ext.P8 seizure mahazar, clearly reveal the offences alleged against the accused. The accused faced a further allegation that no goods vehicle register was maintained. In addition to the conviction and sentence under Secs.279, 337 and 304A IPC, the petitioner was sentenced to pay a fine of Rs.100/- and in default, to undergo imprisonment for a period of two days. 15. No other contentions are raised on merits. I am Crl.R.P. No.421 of 2002 -: 10 :- satisfied that the verdict of guilty and conviction do not deserve to be overturned. 16. Coming to the question of sentence, the learned counsel for the petitioner contends that the sentence of simple imprisonment for a period of two years imposed under Sec.304A IPC is not at all justified. The learned Magistrate felt and the appellate court found that deterrence does have a place in the matter of sentencing the accused for a road traffic offence. I have no disagreement with the courts below that a deterrent substantive sentence has got to be imposed in the facts and circumstances of the case. But I take note of the totality of circumstances including the lapse of a long period of time from the date of the accident i.e., 19/9/93. Taking the totality of circumstances into account, I am satisfied that while upholding the sentence of fine imposed for the offence punishable under Sec.162 read with Ssec.177 of the Motor Vehicles Act, the substantive sentence of imprisonment imposed under Secs.279, 337 and 304A IPC can be modified and reduced. 17. In the result: (a) This revision petition is allowed in part. (b) The verdict of guilty and conviction of the revision Crl.R.P. No.421 of 2002 -: 11 :- petitioner under Secs.279, 337 and 304A IPC as also the sentence imposed for the offences punishable under the M.V. Act are upheld. (c) But the sentences imposed for the offenses punishable under Secs.279, 337 and 304A IPC are modified and in supersession of the sentences imposed on the petitioner by the courts below, he is sentenced to undergo simple imprisonment for a period of three months, three months and six months respectively for the said offences. The sentences shall run concurrently, it is further directed. 18. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 31/8/09 to serve the modified sentences hereby imposed. The modified sentences shall not be executed till that date. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.421 of 2002 -: 12 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.421 of 2002 ------------------------------------------------- Dated this the 8th day of July, 2009 ORDER