IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2698 of 2003() ------------------------------ CRA.220/1994 of ADDL. SESSIONS COURT FAST TRACK COURT I, TRIVANDRUM CC.289/1990 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- NAZAR S/O. M.K.YUSEF, MATHAR HOUSE, VALLAKKADAVU, THIRUVANANTHAPURAM-8 BY ADV. SRI.P.K.JOSE RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2698 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.289/1990 of Judicial First Class Magistrate V, Thiruvananthapuram and appellant in Crl.Appeal No.220/1994 of Additional Sessions Court, Thiruvananthapuram . He was convicted under Sections 279, 337 of IPC and Section 3(1) read with Section 113 of Motor Vehicles Act and sentenced to undergo rigorous imprisonment for three months under Section 279 of IPC and rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for one month under Section 337 of IPC. He was also sentenced to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for 15 days under Section 3(1) read with Section 113(B) of Motor Vehicles Act. On appeal, the lower appellate court confirmed the conviction and sentence under Section 279 and 337 of IPC , but remanded the matter to the trial court to consider afresh whether prosecution has succeeded in establishing his case that the accused has committed the offence Crl.R.P.No.2698/03 Page numbers under Section 304(A) of IPC, if not under Section 338 of IPC. The accused has now come up in revision challenging his conviction and sentence and the order of remand made by the lower appellate court. 2. The case of the prosecution as shaped in evidence before the trial court was that on June 26, 1988 at about 3.45 p.m. the accused without having a valid driving licence drove jeep bearing Reg. No.KLO 5019 in a rash and negligent manner so as to endanger human life along the Ponnara junction Puthenpalam road and near Ponnara junction it dashed against a scooter bearing Reg.No.KRT.5845 belonging to PW6 which was parked on the western side of the road and thereafter hit against the deceased Markose Nadar who was at that time sitting on the granite wall on the western side of the road as a result of which the deceased sustained fracture on his right leg and that jeep again proceeded forward and hit against the compound wall of PW5 causing damage to the compound wall as well as the bicycle kept therein and that the Markose Nadar succumbed to his injuries sustained while undergoing treatment in the Medical College Hospital, Thiruvananthapuram on July 19, 1988 at about 3.10 p.m. and that the Crl.R.P.No.2698/03 Page numbers accused has thereby committed the offence punishable under Sections 279, 337 and 304(A) of IPC and Section 3(1) read with Section 113(B) of Motor Vehicles Act. 3. When the accused appeared before the trial court, he pleaded not guilty to a charge under Sections 279, 337 and 304(A) of IPC and Section 3(1) read with Section 113(B) of Motor Vehicles Act. PWs 1 to 15 were examined and Exts.P1 to P13 were marked on the side of the prosecution. . When questioned under Section 313 Cr.P.C., the accused denied the incident. On the side of the accused, DWs 1 and 2 were examined. 4. The learned Magistrate on an appreciation of evidence found the accused guilty of the offence punishable under Sections 279 and 337 of IPC and Section 3(1) read with Section 113(B) of Motor Vehicles Act, convicted him thereunder and sentenced him as aforesaid. He was found not guilty of the offence punishable under Section 304(A) of IPC and acquitted him of the said charge. On appeal filed by the accused, the conviction and sentence of the revision petitioner under Sections 279 and 337 of IPC and Section 3(1) read Crl.R.P.No.2698/03 Page numbers with Section 113(B) of Motor Vehicles Act was confirmed, but the learned Sessions Judge remanded the matter to the trial court to consider afresh whether the accused has committed any offence punishable under Section 304(A) of IPC. The accused has filed the above appeal challenging his conviction and sentence. 5. The learned Sessions Judge finding that the finding of the learned Magistrate that accused is not guilty of the offence punishable under Section 304(A) of IPC is erroneous and took suo motu revision . The appeal and revision were heard together and disposed of by a common judgment. The accused has now come up in revision challenging the said orders of lower appellate court. 6. Heard the counsel for the revision petitioner and the Public Prosecutor. 7. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Sections 279 and 337 of IPC and Section 3(1) read with Section 113(B) of Motor Vehicles Act can be sustained ? Crl.R.P.No.2698/03 Page numbers 2) Whether the finding of the lower court regarding the charge under Section 304(A) of IPC and consequential remand order passed can be sustained ? Point Nos. 1 and 2 8. PWs 1 to 15 were examined and Exts.P1 to P13 were marked on the side of the prosecution to prove the guilt of the accused. PW1 is the grandson of deceased Markose Nadar He is the alleged eye witness to the incident. PWs 2 , 3 and 4 are also the alleged eye witness to the incident. They have categorically stated that the accident occurred due to the negligence on the part of the driver of the jeep . They have also identified the accused as the driver of the offending jeep. Nothing was brought out during their cross examination to discredit their evidence. They have absolutely no enmity towards the accused. The trial court as well as the lower appellate court is perfectly justified in believing their evidence and coming to the conclusion that accident occurred due to the rash and negligent driving of the offending jeep by the accused. Crl.R.P.No.2698/03 Page numbers 9. PW5 is the owner of the bicycle who took it on executing Ext.P2 kychit. PW6 is the owner of the scooter which was damaged in the incident. PW7 is the owner of the jeep bearing Reg. No.KLU 5019 involved in the accident. He testified that it was the accused who drove the jeep at the time of the accident. PW8 is the signatory to Ext.P6 scene mahazar. PW9 received the dead body of Markose Nadar from the Medical College Hospital. PW10 is the doctor who examined the deceased Markose Nadar on 26-06-1988 at about 4 p.m. PW11 is the Assistant Motor Vehicle Inspector who inspected the motor cycle as well as the jeep involved in the accident and issued the certificate Exts.P7 and P9. PW12 is the Head Constable who registered the case on the basis of the information given from the hospital. PW13 is the doctor who conducted postmortem of the deceased Markose Nadar. PW14 is the Circle Inspector of Police who conducted inquest. Ext.P11 is the inquest report. He has also verified the investigation of CW14. He completed the investigation and laid the charge before the trial court. 10. The plea raised on behalf of the accused was that he was Crl.R.P.No.2698/03 Page numbers insane at the time of the accident. It is not at all proved . In an attempt to show this aspect, DWs 1 and 2 were examined on the side of the accused. DW1 is the retired Principal of Govt. Ayurveda College, Thiruvananthapuram who treated the accused for mental illness. DW2 Abdul Rasheed, a teacher of Madraza, also deposed that accused was suffering from mental disease. But the trial court as well as the lower appellate court rejected their evidence. I find no reason to come to a different conclusion. All these apart, the accident itself shows that there was negligence on the part of the driver of the jeep. For all these reasons, I am inclined to accept the evidence adduced on the side of the prosecution and hold that the trial court as well as the lower appellate court is perfectly justified in finding that the accused has committed the offence punishable under Section 279 and 337 of IPC. 11. As regards the charge under Section 304(A) of IPC, the counsel for the revision petitioner argued that the accused died only on 19-07-1988 which is about one month after the incident and that therefore he cannot be found guilty of Section 304(A) of IPC. The trial court found him not guilty under Section 304(A) of IPC finding that Crl.R.P.No.2698/03 Page numbers accused died on account of infection of the injuries sustained in the accident. The said finding does not appear to be correct. It is admitted that accused sustained fracture of both bones of right leg in the accident and that subsequently he died out of infection while undergoing treatment at Medical College Hospital, Thiruvananthapuram. The lower appellate court has remanded the case to the trial court for considering afresh whether the charge under Section 304(A) of IPC will lie against the accused. I find no reason to interfere with the said finding of the lower appellate court. 12. 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 three months and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for one month under Section 337 of IPC. He was also sentenced to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for 15 days under Section 3(1) read with Section 113(B) of Motor Vehicles Act. Taking into consideration that the accident occurred in 1988, I feel that a sentence of fine of Rs. 1000/- under Section 279 of IPC, in default to Crl.R.P.No.2698/03 Page numbers undergo simple imprisonment for three months and a fine of Rs. 500/- in default to undergo simple imprisonment for one month under Section 337 of IPC would meet the ends of justice. In the result, conviction of the revision petitioner/accused under Section 279 and 337 of IPC is confirmed and accused is sentenced to pay a fine of Rs. 1000/- ,in default to undergo simple imprisonment for three months under Section 279 of IPC and to pay a fine of Rs. 500/- , in default to undergo simple imprisonment for one month under Section 337 of IPC. The sentence of fine imposed under Section 3(1) read with Section 113(B) of Motor Vehicles Act is maintained. The case is remanded to trial court to decide the question whether accused has committed an offence punishable under Section 304 (A) or 338 of IPC. Accused shall appear before the trial court on 08-01-2010. The trial court shall dispose of the case within six months from the date of receipt of the copy of this order. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2698/03 Page numbers