IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 Crl.Rev.Pet.No. 62 of 2004(C) --------------------------------------------- [ CRA.32/1996 of I ADDL. SESSIONS COURT, KOLLAM CC.1401/1992 of MUNSIFF MAGISTRATE COURT,PARAVUR ] .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- RADHAKRISHNAN, AGED 38 YEARS, S/O. NEELAKANTAN, CHERUVILAPUTHN VEEDU, OZHUKUPARA, NEDUNGOLAM, MEENADU VILLAGE. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT/RESPONDENT/ COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHATHANOOR POLICE STATION, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26 /10 /2009, THE COURT ON 26/10/2009 PASSED THE FOLLOWING: PKK P.S. GOPINATHAN, J. ------------------------- CRL. R.P. NO. 62 OF 2004 -------------------------------- DATED THIS THE 26th DAY OF OCTOBER 2009 O R D E R The revision petitioner is the accused in C.C No. 1401 of 1992 on the file of the Judicial Magistrate of the First Class, Paravoor. The Sub Inspector of Police, Chathannoor in Crime No. 150 /90 filed a chargesheet against the revision petitioner originally before the Judicial Magistrate of the IInd Class, Kollam alleging offence under sections 279, 337 and 338 of the IPC and Section 3(1) r/w Section 181 of the Motor Vehicles Act. From there, it was made over to the former court. The allegation against the revision petitioner is that at 9.45 a.m on 19-8-1990, without a valid driving licence, the revision petitioner drove an ambulance bearing registration No. KRU 5638 in a rash and negligent manner so as to endanger human life, from north to south along the Chathannoor – Paravur public road and at the western road margin it hit against the scooter bearing registration No. KL3-2193 ridden by PW1 along the western margin of the road and as a result PW1 sustained simple and grievous hurt and both the vehicles sustained damages. CRL. R.P. NO. 62 OF 2004 2 2. Responding to the process issued the revision petitioner entered appearance. When the particulars of the offence were read over and explained, he pleaded not guilty. Hence he was sent for trial. On the side of the prosecution PWs 1 to 8 were examined and Exts.P1 to P12 were marked. After closing evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Cr.PC. The revision petitioner denied the incriminating evidence. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived a conclusion that the prosecution had succeeded in establishing the offence alleged. Consequently revision petitioner was convicted and sentenced to rigorous imprisonment for three months and six months respectively for the offence under sections 279 and 338 IPC. No separate sentence was awarded for offence under section 337. For offence under section section 3(1) r/w section 181 of the Motor Vehicles Act the revision petitioner was sentenced to pay a fine of Rs. 500/- with a default sentence of simple imprisonment for 15 days. Aggrieved by the above conviction and sentence, the revision petitioner preferred CRL. R.P. NO. 62 OF 2004 3 criminal appeal No. 32 of 1996 before the Sessions Judge, Kollam. The 1st Additional Sessions Judge, Kollam to whom the appeal was made over, by judgment dated 30-8-2003 dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal this revision petition was filed. 3. The revision petitioner as well as learned public prosecutor was heard. The judgments of the courts below were perused. PW1 had deposed that at 9.45 a.m. on 19-8-1990 while he riding a scooter bearing registration No. KL3-2193 from south to north, the revision petitioner drove an ambulance bearing registration No. KRU-5638 in the opposite direction and knocked down PW1 and that the ambulance came to halt after running 200 feet to the property on the western side. He had also deposed that the accident had occurred because of the rash and negligent driving of the revision petitioner. 4. PW3 had deposed that at 9.45 a.m on 19-8-1990 while he was walking along the western side of the Chathannoor- Paravur road he saw that the ambulance driven by the revision CRL. R.P. NO. 62 OF 2004 4 petitioner knocking down PW1 who was riding the scooter. He also attributed negligence on the part of revision petitioner. He had further deposed that the ambulance driven by the revision petitioner ran off the road and came to halt at the neighbouring property after running to a distance of 30 meters. 5. Ext.P2 Scene mahazar, to which PW2 is an attester, would show that the tar road was having a width of 3.05 metres and that the spot of occurrence was at 25 cms west from the western tar end and the ambulance was found halted in the western property at a distance of 15 metres. 6. PW4 had deposed that he was working as a medical officer in Upasana Hospital, Kollam and that he had examined PW1 who was brought to the hospital with injury sustained in a road traffic accident. On examination, it was found that PW1 was having (1) lacerated would left side of upper eyelid, (2) fracture right radius, (3) fracture first meta tarsel, (4) fracture base of second meta carpel, (5) fracture base of promixal phalanax-ring finger- right, (6) fracture 5th meta carpel, (7) lacerated injury dorsum of right foot extending from base of big toe to the base of CRL. R.P. NO. 62 OF 2004 5 5th meta carpal about 6 cm x 2 cm, and (8) lacerated injury sole – right foot. 7. PW5 had deposed that he was the Assistant Motor Vehicles Inspector and that he had examined both the vehicles involved in the accident and that Exts.P4 and P5 are the certificates issued by him relating to the Ambulance and Motor cycle and that the break system of both vehicles was efficient and there was no mechanical defect. 8. The evidence of PW6 would show that the ambulance which was seized by the police was got released by him after executing Ext. P6 and that responding to Ext.P7 notice, PW6 had given Ext.P8 reply stating that the revision petitioner was the driver. PW6, the custodian of the ambulance had also reported that the revision petitioner was the driver of the ambulance van at the time of accident. 9. The evidence of PW1, 3 and 6 coupled with Ext.P8 would show that the revision petitioner was the driver of the ambulance van at the time of accident. There is no reason to reject the above evidence. The learned counsel for the revision CRL. R.P. NO. 62 OF 2004 6 petitioner has not disputed the identity of the revision petitioner as the driver of the ambulance. In the above circumstances, I find that the courts below had correctly found that the revision petitioner was the driver of the ambulance van at the time of accident. 10. The evidence of PW5 coupled with Exts. P4 and P5 would show that the break system of the ambulance was efficient and there was no mechanical defect. So, mechanical defect cannot be attributed as the cause of the accident. 11. The evidence of PW4 coupled with Ext. P3 and the testimony of PW1 would show that PW1 had sustained simple as well as grievious hurt due to the accident. Exts.P4 and P5 issued by the PW5 would show that both the vehicles sustained damages. There is no reason to reject the above evidence. By that evidence, the prosecution had succeeded to establish that due to the accident, PW1 sustained simple and grievious hurt and both vehicles got damaged. 12. The question which then remains is as to whether there is any negligence or rashness on the part of the revision CRL. R.P. NO. 62 OF 2004 7 petitioner. Ext.P2 as I stated earlier would show that the accident occurred at the road margin 25 cms towards west from the western tar end. From the evidence of PW1 and 3 it is revealed that revision petitioner was driving the vehicle from north to south and PW1 was riding the motor cycle from south to north. PW1 had been riding the vehicle along the western road margin. Even then the revision petitioner who was driving the vehicle from north to south had driven the vehicle to the extreme end of the road at right side and hit PW1. The revision petitioner who was driving the ambulance could not stop the vehicle evenafter knocking down PW1. Ext.P2 would show that vehicle was found parked 15 metres towards the western property. According to PW1, the vehicle after hitting him down ran to a distance of 200 feet. That appears to be an exageration. According to PW3, the vehicle after hitting PW1 ran ahead to 30 feet and came to halt at the adjacent property. Ext.P2 would show that the ambulance actually ran 15 metres to the adjacent property after hitting down PW1. That fact itself would show that revision petitioner was not at a controllable speed. Evenafter hitting PW1 he could CRL. R.P. NO. 62 OF 2004 8 not stop the vehicle and the vehicle ran to the adjacent property on the western side of the road. There is little material on record to show that PW1 had any way contriuted any negligence. The rashness and negligence on the part of revision petitioner is apparent. 13. In the above circumstances I find that the prosecution had succeeded to establish offence under Sections 279, 337 and 338 IPC. The conviction under challenge is sustainable. It requires no interference by this court. 14. As regards the allegation that the revision petitioner was not having a valid licence at the time of accident, absolutely there is no evidence at all. The evidence of PW8 states that the revision petitioner was not having a valid licence at the time of accident and it is in violation of u/s. 3(1) r/w.Sec.181 of the Motor Vehicles Act. It is pertinent to note that, it is not disclosed as to from where he got such an information. There is nothing on record to show that he made any inquiry with the Motor Vehicles Department and ascertained that the revision petitioner had no valid licence at the time of accident. In the above CRL. R.P. NO. 62 OF 2004 9 circumstances, I find that due to the lack of sufficient evidence the revision petitioner cannot be attributed to have committed offence u/s 3(1) r/w.181 of M.V. Act. Therefore the conviction and sentence imposed thereunder are not sustainable. 15. The learned counsel for the revision petitioner vehementally argued that the revision petitioner is entitled to get the benefit under the Probation of Offenders Act. Having due regard to the manner in which the accident occurred, the nature of injuries sustained to PW1, the revision petitioner is aged 38 years and taking note of the fact that the traffic accident are increasing day by day, the revision petitioner is not entitled to get any benefit under any of the provisions of the Probation of Offenders Act. The sentence now awarded by the trial court for offence u/s 279 and 338 IPC and confirmed in appeal is moderate and requires no interference. In the result, the revision petition is allowed in part. While setting aside the conviction and sentence for offence under Section 3(1) r/w. Sec.181 of M.V.Act, the conviction for offences u/s 279, 337 and 338 IPC and sentences for offences under CRL. R.P. NO. 62 OF 2004 10 Sections 279 and 338 IPC are confirmed. The revision petitioner shall surrender before the trial court forthwith for execution of the sentence. P.S.GOPINATHAN JUDGE PKK