IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 923 of 2002(J) ------------------------------ CRA.91/2000 of II ADDL.SESSIONS COURT, KOLLAM CC.123/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVISION PETITIONER(S): ACCUSED:APPELLANT: --------------------------------------------------------------------------- JANARDANAKURUP, S/O.RAGHAVAKURUP, THEVALASSERITHARAYIL, CHANGANKULANGARA MURI, OACHIRA VILLAGE. BY ADVS. MR.LLOYD JOSEPH VIVERA, MR.K.SANIL KUMAR, MR.C.A.CHACKO. RESPONDENT(S): COMPLAINANT:RESPONDENT: -------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON 24/03/2009 PASSED THE FOLLOWING: Kss ORDER ON C.M.P.NO.5096/2002 IN CRRP.NO.923/2002 DISMISSED 24/03/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.923 OF 2002 (C) ----------------------------------- Dated this the 24th day of March, 2009 O R D E R This revision is filed against the concurrent verdict of guilt rendered against the accused, for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. The learned Magistrate convicted and sentenced him to undergo simple imprisonment for one month each for the offences punishable under Sections 279 and 337 IPC, and three months simple imprisonment under Section 338 IPC, with direction to pay compensation of Rs.25,000/- under Section 357 (3) of the Code of Criminal Procedure to the defacto complainant (PW1) and her minor son, both injured in the occurrence involving the motor vehicle driven by the accused. Sessions Judge, in appeal, confirmed the conviction and sentence, but set aside the direction to pay compensation. 2. PW1, the defacto complainant, and her minor son, CRL.R.P.923/2002 2 aged 11/2 years were travelling in an autorickshaw bearing registration No.KL-2/5632 driven by the accused on the evening of 12.1.1996. The vehicle, which proceeded through Thottathil mukku to Changankulangara public road from west to east, was driven rashly and negligently by the accused endangering human life, as a result of which all of a sudden, the vehicle went off the road and hit against a compound wall situated on the northern side of the road and capsized. Both PW1 and her minor son sustained serious injuries. PW1 suffered fracture to both bones of her lower left limb. The crime registered over the occurrence, after investigation, led to the indictment of the accused for the offences punishable under Sections 279, 337 and 338 IPC. 3. The accused pleading not guilty to the charges against him, the trial proceeded with the prosecution examining PWs.1 to 10 and exhibiting Exts.P1 to P9, to bring home his guilt. Denying the incriminating circumstances appearing in the prosecution evidence, when questioned under Section 313 of the Cr.P.C., the accused canvassed the defence that PW1 had kept her leg stretched outside the CRL.R.P.923/2002 3 vehicle while it was driven through the road and she had contributed for the occurrence atleast to the extent of not taking adequate care while travelling as a passenger in the vehicle. Yet another defence was also projected that in order to avert a collision with a car coming from the opposite side at enormous speed with the lights on, he had to swerve the auto to one side, and thus the occurrence took place. The car which came from the opposite direction with the lights on, according to the accused, turned into the hospital situate beside the road. To sustain the defence canvassed, the accused examined one witness as DW1. 4. Though the prosecution examined PWs.1 to 3 to prove the occurrence, except PW1, the others turned hostile to its case denying/witnessing of the occurrence. After appreciating the materials rendered in this case, the learned Magistrate found that the testimony of PW1, the injured, as to how the occurrence took place that it was on account of the rash and negligent driving of the accused, was fully corroborated by the features evidenced by Ext.P1 scene mahazar prepared over the site of occurrence. The defence canvassed by the accused CRL.R.P.923/2002 4 was found meritless. It was also noticed on the basis of the evidence of the Assistant Motor Vehicle Inspector and also the inspection report prepared over the vehicle involved that it was free from any mechanical defects and its brake system was effective and functioning. On the proved facts and circumstances established in the case, the learned Magistrate found the accused guilty of the offences imputed and thereupon he was convicted and sentenced, which as already stated, was upheld by the Sessions Court, in appeal. 5. The learned counsel for the accused/revision petitioner assailed the conviction and sentence contending that the appreciation of evidence by both the courts below was not proper and correct and it has resulted in forming wrong conclusion leading to miscarriage of justice. Other than the solitary testimony of PW1, the injured, there was nothing in the materials to sustain the prosecution case that the accused drove the vehicle rashly and negligently and that he was primarily culpable for the occurrence, according to the learned counsel. This was a case where the defence projected by the accused that in order to avert a collision with a vehicle CRL.R.P.923/2002 5 coming from the opposite direction at great speed with lights on, the driver of the autorickshaw, the accused, all of a sudden had to turn his vehicle to one side, and thus the inevitable accident occurred deserved acceptance as probable, is the submission of the counsel. At the most, an error of judgment contributed for the occurrence and that could not be considered as a rash and negligent act, is the argument of the counsel. The evidence of DW1 who was examined by the accused to prove his version of the occurrence was discarded by both the courts below without justifiable reason, submits the counsel. The accused need only show that his defence is probable and is not expected to prove his version of occurrence with certainty to absolve him of the indictment of culpable criminal rashness and negligence in driving the vehicle, submits the counsel. Relying on P.Rajappan v. State of Kerala (1985 (2) Crimes 507) the learned counsel contended that in a case involving rash and negligent driving, to prove the indictment for the offences thereunder against the driver of the vehicle, it is not sufficient for the prosecution to prove that there was rashness or negligence on the part of the driver but it must be established by cogent and convincing CRL.R.P.923/2002 6 evidence that his rashness and negligence was culpable for the occurrence and the consequent injuries. Both the courts below have given unmerited consideration to the evidence of PW1, the injured, and discarded and brushed aside the defence evidence is the grievance canvassed by the learned counsel to urge that on the facts and circumstances involved in the case, the accused was atleast entitled to the benefit of doubt, and thus a judgment of acquittal in his favour. 6. I have perused the records of the case to consider the merit of the challenges canvassed by the learned counsel for the accused to assail the conclusion formed by the courts below. I am afraid that the arguments advanced by the learned counsel that there was a misreading of evidence by the courts below cannot at all be appreciated. Needless to point out in exercise of revision, a re-appreciation of evidence is permissible only if it is shown that the findings entered by the inferior court is so perverse and could not have been made on the materials produced. Both the courts below have found that the sworn testimony of PW1, the injured, that the occurrence took place on account of the rash and negligent CRL.R.P.923/2002 7 driving of the autorickshaw by the accused, is reliable, convincing and trust worthy. The features evidenced by Ext.P1 scene mahazar prepared over the site of occurrence, it was found, corroborated her evidence that the culpable rash and negligent driving of the vehicle by the accused was solely responsible for the occurrence. In this context, it is pertinent to note that at the site of occurrence, the tar road has a width of 3 m 85 cm and the road margin on the north has 1 m width. Site of occurrence as evident from Ext.P1 scene mahazar is 2 m 83 cm towards the north from the northern tar end. So, even assuming for argument sake that the accused had to swerve his vehicle towards north seeing a vehicle coming at great speed from the opposite direction, he is expected to give a proper explanation how his vehicle went off the road and covered a distance of 2 m 83 cm and hit against the wall on the northern side. That has to be viewed in the background of the evidence of PW1, the injured, that the vehicle proceeded at normal speed. She had denied the suggestion that the accused swerved the vehicle suddenly on seeing a car coming from the opposite direction. It is her version that on account of the reckless driving of the driver of the vehicle, the CRL.R.P.923/2002 8 occurrence took place causing injuries to her and her minor child. The evidence of PW1 coupled with the features borne out by Ext.P1 scene mahazar, as found by both the courts below, leave no room for doubt that the occurrence took place on account of the gross and culpable negligence and also rashness of the accused in driving the vehicle with total recklessness and indifference to the consequences arising from his acts. The evidence of DW1 supporting the version of occurrence narrated by the accused appears to be too artificial, and it was rightly and correctly discarded by the courts below. This witness would also support the case of the accused that PW1, while travelling in the vehicle had stretched her leg outside the vehicle. The evidence would show that she was sitting on the right side of the autorickshaw, and if at all she had kept her leg outside the vehicle, naturally, it would have come to the notice of the driver, who is expected to look at the rear view mirror often while driving the vehicle. There is no merit in the defence of the accused that PW1 stretching her leg outside the vehicle contributed for the occurrence. Such a defence canvassed by the accused is an indicator that the parallel defence set up CRL.R.P.923/2002 9 that to avert a collision with a vehicle coming from the opposite direction, he had to swerve his auto to one side is also nothing but a fishing expedition to wriggle out from the indictment that the occurrence was caused by his rash and negligent driving of the vehicle. Conviction entered against the accused in the proved facts and circumstances does not call for any interference at all. Sentence imposed for the offences with which he was found guilty is just and reasonable, which also does not call for any modification. The revision is accordingly dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.923 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- March, 2009