IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.Rev.Pet.No. 661 of 2001() ----------------------------- CRA.66/1997 of SESSIONS COURT, KOZHIKOE CC.30/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S): REVISION PETITIONER --------------------- SAMUEL O.K., ALIAS SHAJI KAVUMPURATH HOUSE KOOMPARA BAZAR P.O. KOODARANJI (VIA) KOZHIKOE BY ADV. SRI.K.BABU THOMAS RESPONDENT(S): RESPONDENTS --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 2. THE CIRCLE INSPECTOR OF POLICE, THAMARASSERY KOZHIKOE 3. THE SUB INSPECTOR OF POLICE THIRUVAMBADY POLICE STATION KOZHIKOE PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P..No.661 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.30/1995 of Judicial First Class Magistrate Court II, Thamarassery and appellant in Crl.Appeal No.66/1997 of Sessions Court, Kozhikode. He was convicted under Section 279 and 304(A) of IPC and was sentenced to undergo rigorous imprisonment for three months under Section 279 of IPC and rigorous imprisonment for one year under Section 304(A) of IPC. The sentences were ordered to run concurrently. The accused was disqualified for having a driving licence for a period of one year. On appeal, the Sessions Court confirmed the conviction and sentence of the revision petitioner. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on June 23, 1994 at about 5.30 p.m. , accused drove his Auto rickshaw bearing Reg. No.KL11A-41 in a rash and negligent manner so as to endanger human life along the Koodaranhi- Crl.R.P.No.952/02 Page numbers Koombara public road and that when it reached at Eettippara, it knocked down a pedestrian named Ayyappan who was walking along the side of the road causing him very grievous injuries and that he succumbed to the injuries sustained while undergoing treatment in the hospital and that therefore the accused has committed the offences punishable under Sections 279 and 304(A) of IPC. 3. On appearance before the trial court, the accused pleaded not guilty to a charge under Section 279 and 304(A) of IPC. PWs 1 to 18 were examined and Exts.P1 to P11 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the learned Magistrate, the accused denied the entire incident. No defence evidence was adduced. The trial court on an appreciation of evidence found the revision petitioner guilty of the offences punishable under Sections 279 and 304(A) of IPC , convicted him and sentenced him as aforesaid which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration : Crl.R.P.No.952/02 Page numbers 1) Whether the conviction of the revision petitioner under Section 279 and 304(A) of IPC can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 5. PWs 1 to 18 were examined and Exts.P1 to P11 were marked before the trial court by the prosecution to prove the guilt of the accused. PW1 is the daughter of the deceased who launched the FI statement Ext.P1. The accident as well as the fact that the deceased died as a result of the injury sustained in the accident was not seriously disputed. The main question is whether the accident occurred due to the rash and negligent driving of the Auto rickshaw by the accused. PW1 testified that while she along with deceased was walking along the mud portion of the road , an Auto rickshaw came at a high speed and knocked her father down. She also identified the accused as the driver of the offending auto rickshaw. Nothing was brought out during her cross examination to discredit her evidence. Her evidence is Crl.R.P.No.952/02 Page numbers supported by PWs 4 and 5 , two independent witnesses who witnessed the accident. I have gone through the evidence of PWs 1, 4 and 5 . I find no reason to disbelieve their evidence. Their evidence clearly proves that the accident occurred due to the rash and negligent driving of the offending Auto rickshaw by the accused. Their evidence also shows that accused was the driver of the offending Auto rickshaw at the time of the accident. 6. PW2 and PW3 other independent witnesses who allegedly witnessed the accident turned hostile and did not support the prosecution. PWs 6 and 7 are the attestors to scene mahazar Ext.P4 and body mahazar of vehicle Ext.P5. PW8 is the Section Clerk of Regional Transport Office, Malappuram . He was examined to prove the ownership of the Auto rickshaw involved in the accident . According to him one Mohammed Kunhi was the owner of the Auto rickshaw at the time of the accident. PW9 is the owner of the Auto rickshaw . But he would say that he cannot say that who was the driver of the Auto rickshaw at the time of accident. PW10 is the Medical Officer attached to Medical College Hospital, Kozhikode who Crl.R.P.No.952/02 Page numbers examined the deceased and issued the wound certificate -Ext.P5. PW11 is the Head Constable attached to the Medical College, Police Station, Kozhikode who registered the FIR on the basis of Ext.P1 FI statement. Ext.P6 is the FIR. PW12 is the A.S.I. of Police, who investigated the case. PW13 is the Circle Inspector of Police who verified the investigation in the case and laid the charge before the lower court. PW14 is the Head Constable attached to Medical College Police Station who recorded Ext.P1 F.I. Statement of PW1 from the Medical College hospital. PW15 is the S.I. of Police , Thiruvampady who questioned PW16, the Medical Officer who conducted postmortem on the body of the deceased. Ext.P9 is the postmortem certificate. PW17 is the Motor Vehicle Inspector, Koduvally who inspected the Auto rickshaw involved in the accident and issued the report Ext.P10. PW18 is the another Head Constable attached to Thiruvampady Police Station who re-registered the case on the basis of transfer of Ext.P6. 7. Counsel for the revision petitioner argued that the revision petitioner was not the driver of the Auto rickshaw, that he is a heavy Crl.R.P.No.952/02 Page numbers duty driver and that he found a pedestrian lying across the road with an Auto rickshaw nearby and he alighted from the bus and took the injured to the hospital. I find no substance in the above contention. No such contention was raised by the accused before the trial court or before the appellate court. That apart, PWs 1 , 4 and 5 identified the accused as the driver of the offending Auto rickshaw. Therefore, I find no merit in the above argument advanced by the counsel for the revision petitioner. No other point is argued before me. Therefore, I am inclined to uphold the conviction of the revision petitioner under Section 279 and 304(A) of IPC rendered by the trial court which is confirmed in appeal. Point No.2 8. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months under Section 279 of IPC and rigorous imprisonment for one year under Section 304(A) of IPC. The accident occurred in 1994 i.e. about 15 years back. Therefore, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 50,000/- under Section 304(A) of IPC and a fine of Rs. 500/- Crl.R.P.No.952/02 Page numbers under Section 279 of IPC would meet the ends of justice. The direction of the trial court to disqualify him for holding a licence for one year is also confirmed. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 279 and 304(A) of IPC is confirmed. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and further to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for one month under Section 279 of IPC and to pay a fine of Rs. 50,000/- under Section 304(A) of IPC, in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. The sentence to suspend his licence for one year is also confirmed. Two month's time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.952/02 Page numbers