IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 Crl.Rev.Pet.No. 1315 of 2004() ------------------------------ CRA.360/1988 OF SESSIONS JUDGE, THALASSERRY. CC.690/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER: ACCUSED: -------------------------- K.MUSTHAFA, S/O. MOIDEEN, MADAI AMSOM DESOM, ERIPURAM (P.O), PAYANGADI. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENTS: COMPLAINANT: ------------------------- THE STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KANNAPURAM POLICE STATION, KANNUR DIST. BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.1315 OF 2004 ------------------------------------------- Dated this the 29th day of May, 2008 O R D E R The review petitioner stands convicted for offences punishable under Sections 279 and 338 IPC. The sentence imposed by the trial court of six months under Section 279 and for one year under Section 338 has been reduced by the court of sessions in appeal to be simple imprisonment for three months under Section 279 and for six months under Section 338. The allegation against the petitioner was that at about 12.15 p.m. on 3.3.1993, the accused drove a tempo van in a rash and negligent manner so as to endanger human life along the public way and that the said vehicle hit against a motor cycle resulting in injuries to the rider and pillion rider of the motor cycle; four students who were standing on the side of the road as also to the driver and cleaner of the tempo van. PWs.1 to 14 were examined and Exts.P1 to P12 were marked. On the basis of that evidence, the court of first instance convicted and sentenced the review Crl.RP.1315/04 Page numbers petitioner as already noticed. The court of sessions confirmed the conviction, but reduced the sentence imposed. 2. PW1, the rider of the motor cycle and PW2, the pillion rider as also PWs.3 to 6 who were students going to school, sustained injuries due to the incident. It has been noticed by the courts below that the injuries sustained by PWs.3 to 6 were not directly resulting out of the alleged driving of the vehicle and it was only on account of the pandemonium in the scene of occurrence following the incident. The evidence of PW1, the injured rider of the motor cycle shows that the tempo van came from the opposite direction and hit against his vehicle. PWs.1 and 2 were thrown out of the motor cycle and have sustained injuries. This is found corroborated by the testimony of PW2. PW1 spoke that the tempo van came along the wrong side. This also was corroborated by PW2. It was also stated by PW2 that the tempo van was coming at an over speed. The courts below, particularly the court of sessions, noticed the contention on behalf of the accused that there could be a chance of PWs.1 and 2 trying to Crl.RP.1315/04 Page numbers shift the liability for the accident to the shoulders of the accused person if PW1 was the actual offender. However, as rightly noticed by the court of sessions, there was no challenge to their evidence in the court of first instance. PW1's evidence was not challenged and there was no effective cross-examination. The courts below have concurrently accepted the versions of PWs.1 and 2 that the accident occurred only due to the rash and negligent driving of the vehicle by the accused person through the wrong side. The court of sessions noticed that Ext.P1 scene mahazar shows that the incident took place in a road which lies in the north-south direction and the motor cycle was found lying with the back wheel towards the east. The tempo van was found dashed against a coconut farm about 7.5 meters away from the eastern side of the road. The court of sessions noticed that nothing was brought to discredit the evidence of PWs.1 and 2 that the tempo van came along the wrong side and hit against the motor cycle. PWs.3 to 6 students were not cross-examined. Crl.RP.1315/04 Page numbers 3. It is unfortunate that this case has to be considered without any legal assistance, though an advocate has been engaged in this case by the accused, revision petitioner. A perusal of the judgments of the courts below would also show that it was lack of proper legal assistance that even the witnesses arrayed as eye witnesses and victims of the incident have not been cross examined. As already noticed, two vehicles are involved in the incident; a tempo van and a motor cycle. The tempo van is isolated as the offending vehicle and its driver is arrayed as the accused. The rider of the motor cycle is arrayed as PW1. One fails to understand how a defence lawyer could have left without cross examining PW1. The cross examination of PW2 the pillion rider was also, as notice by the court of sessions, scanned. The scene of occurrence, with reference to the scene mahazar, has been noticed as a public road lying north-south. The motor cycle was seen lying its tail towards the east. The offending tempo van was found to have hit a palm tree and gone 7.5 meters towards the east. The courts below have not even noticed the directions from which the vehicles came. The materials by themselves Crl.RP.1315/04 Page numbers were not convincing to sustain the conviction merely on the depositions of PWs.1 and 2. I am satisfied that the order of conviction is wrong, illegal and improper. In the result, this revision is allowed, setting aside the conviction and sentence and acquitting the accused. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.