IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.Rev.Pet.No. 196 of 2001() ----------------------------- CRA.41/1997 of SESSIONS COURT, KOZHIKODE CC.282/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, THAMARASSERY .................... REVN. PETITIONER - APPELLANT - ACCUSED --------------------- ASHRAF, S/O. AHAMMED, CHUNDAKUNNUMMAL, RAROTH AMSOM, KEDAVOOR DESOM, KOZHIKODE. BY ADV. SRI.P.M.MOHAMED ALI SRI.MAT.PAI RESPONDENT- RESPONDENT - COMPLAINANT --------------- STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.141/93 OF KODENCHERY POLICE STATION) BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.822/2001 IN CRL.R.P.196 OF 2001 .................... DISMISSED 23.11.2009. SD/- P.Q.BARKATH ALI, JUDGE. P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 196 of 2001 ------------------------------------------------------ Dated: NOVEMBER 23, 2009 ORDER The revision petitioner is the accused in CC 282/1994 of Judicial First Class Magistrate Court-II, Thamarassery and the appellant in Crl.A.41/1997 of the Sessions Court, Kozhikode. He was convicted under secs.279 and 304(A) of IPC and was sentenced to undergo rigorous imprisonment for three months under sec.279 of IPC and rigorous imprisonment for six months under sec. 304(A) of IPC, which is confirmed in appeal. The accused has now 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 December 28, 1993 at about 10.45 a.m. the accused drove his lorry bearing registration No.KL.11 A-6163 from east to west in a rash and negligent manner so as to endanger human life and knocked down one Maliyekkal Vijesh, a boy aged 14 years who was pillion riding on a bicycle on which PW.2 was riding, as a result of which the deceased boy fell down and the back wheel of the lorry ran over the boy and caused his death and that the accused has thereby committed offences punishable under secs.279 and 304(A) of IPC. CRL.R.P.196 of 2001 2 3. When the accused appeared before the trial court, he pleaded not guilty to the charge under secs.279 and 304(A) of IPC. PWs.1 to 15 were examined and Exts.P1 to P11 and MOs.1 to 3 were marked on the side of the prosecution. When questioned under sec.313 Cr.P.C., the accused denied having committed any offence. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offences punishable under secs.279 and 304(A) of IPC and convicted him thereunder and sentenced him as aforesaid, which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 5. Heard Sri P.K.Gopalakrishnan, learned counsel for the revision petitioner, and the learned Public Prosecutor appearing for the State. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under secs.279 and 304(A) of IPC rendered by the trial court and which is confirmed in appeal can be sustained? II. Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? CRL.R.P.196 of 2001 3 Point No.I 7. PWs.1 to 15 were examined and Exts.P1 to P11 and MOs.1 to 3 were marked on the side of the prosecution to prove the guilt of the accused. PWs.1 to 4 are the eye witnesses to the incident. It was PW.1 who gave the FI Statement, Ext.P1. PW.1 testified that the place of the occurrence is a narrow mud road and the lorry came at a high speed and dashed against the bicycle on which the deceased was travelling. PW.2 who was riding the said bicycle also stated that the accident occurred by the careless and reckless driving of the lorry by its driver. PWs.3 and 4 also supported this version of PWs.1 and 2. 8. PW.5 is an attester to the scene mahazar, Ext.P2. PW.6 is the owner of the bicycle involved in the accident. PW.7 is an attester to the inquest report, Ext.P4. PW.8 is an attester to the body mahazr Ext.P5. PW.9 is the Asst. Surgeon attached to the Government Hospital, Thamarassry, who conducted the postmortem of the dead body of the deceased and issued Ext.P6 postmortem certificate. PW.10 is the village officer who prepared the plan of the scene of incident, Ex.P7. PW.11 is the police constable who took the dead body of the deceased to the Government Hospital, Thamarassry. PW.12 is the S.I. of Police who completed the investigation and file the charge sheet. PW.13 is the Head Constable of the Kodencherry Police CRL.R.P.196 of 2001 4 Station who registered the F.I. Statement Ext.P1 and conducted initial investigation and prepared Ext.P2 scene mahazar and inquest report Ext.P7. He seized the trip sheet of the lorry which is marked as Ext.P9. PW.14 is the C.I. of Police, Thamarassery, who verified the investigation. PW.15 is the AMVI who inspected the vehicle involved in the accident and issued the report Ext.P.11. The evidence of PWs.1 to 4 that the accident occurred due to the rash and negligent driving of the offending vehicle. They have also identified the accused as the driver of the lorry. Further, Ext.P9 trip sheet of the lorry also shows the name of the accused as the driver. 9. Learned counsel for the revision petitioner argued that there was also contributory negligence on the part of the person who was riding the bicycle in causing the accident. I am unable to agree. PWs.1 to 4 have categorically stated that the lorry came in a high speed and that too on a narrow road. Further, after the accident the back wheel of the lorry ran over the deceased which shows that the lorry was coming at a high speed. Therefore I am inclined to accept the finding rendered by the trial court that the accident occurred due to rash and negligent driving of the offending lorry by the accused under secs.279 and 304(A) of IPC. Therefore I uphold the conviction of the accused rendered by the trial court, which is confirmed in CRL.R.P.196 of 2001 5 appeal. Point No.II 10. Regarding the sentence, the trial court imposed a sentence of rigorous imprisonment for three months under sec.279 of IPC and rigorous imprisonment for six months under sec. 304(A) of IPC, which is confirmed in appeal. The accident occurred in 1993, about 16 years ago. There is no allegation against the accused that he was under the influence of alcohol or any other substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is undoubtedly despicable aggravated offence warranting stricter and harsher punishment. Taking into account all these aspects and in the light of the principles laid down in Manish Jalan v. State of Karnataka (AIR 2008 SC 3074), I feel that the sentence of imprisonment can be reduced to imprisonment till the rising of the court and the revision petitioner can be directed to pay an amount of Rs. One lakh to the father of the deceased boy by way of compensation. 11. In the result, the conviction of the revision petitioner under secs.279 and 304(A) of IPC is confirmed. The sentence under sec.279 of IPC is modified to a fine of Rs.500/-, in default to undergo simple imprisonment for one month. The sentence under sec.304(A) CRL.R.P.196 of 2001 6 of IPC is reduced to imprisonment till the rising of the court and a fine of Rs.1000/-, in default to undergo simple imprisonment for one month. The revision petitioner is directed to pay a compensation of Rs.One lakh to the father of the deceased boy as provided under sec.357(3) Cr.P.C., in default to undergo simple imprisonment for three months. The revision petitioner shall surrender before the trial court on or before 30.12.2009 to receive the sentence. Three months time is granted for payment of fine and for payment of the compensation amounts. The revision petition is allowed in part as found above. P.Q. BARKATH ALI, JUDGE mt/-