IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 1844 of 2009() ------------------------------ CRA.582/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.942/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KANNAN, AGED 30 YEARS, S/O.VELUCHAMI, VANNAMADA, KOZHIPATHY VILLAGE, CHITTUR THALUK, PALAKKAD DISTRICT. BY ADV. SRI.H.BADARUDDIN RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1844 of 2009 -------------------------------------- Dated this the 28th day of July, 2009. ORDER This revision is in challenge of judgment of learned Sessions Judge, Palakkad in Crl.Appeal No.582 of 2006 confirming conviction and sentence of petitioner for offences punishable under Sections 279 and 338 of the Indian Penal Code (for short, “the Code”). Case is that on 16.11.2004 at about 12.30 p.m. petitioner drove a pick-up van in reverse direction from a service station to the public road and caused that vehicle hit PW1 who was riding a moped from east to west along the public road resulting in grievous hurt to him. Learned magistrate found that petitioner committed offences and sentenced him to undergo simple imprisonment till rising of the court. There was a direction to pay compensation of Rs.15,000/- with default sentence of imprisonment for six months. Appellate court did not interfere with the conviction and sentence. It is contended by learned counsel that conviction of petitioner is not legal or proper. According to learned counsel, accident occurred due to the rashness and negligence of PW1 and at any rate there was contributory negligence on his part. 2. So far as prosecution of rash and negligent driving is concerned, contributory negligence is no defence though that may be a matter to be taken into consideration while considering the sentence to be awarded to the offender. In this case, it has come in evidence that PW1 was not having a licence to ride Crl.R.P.No.1844/2009 2 the moped at the relevant time but, absence of driving licence does not by itself show that PW1 was not having efficiency to ride the moped. That should depend on the facts and circumstances of the case. 3. PW4 is the owner of service station. PW1 is the defacto complainant and the injured. Evidence of PWs 1 and 4 is that at the relevant time petitioner was driving the pick-up van in reverse direction from the service station, that pick-up van emerged into the public road and hit PW1 who was riding the moped from east to west. Ext.P3, mahazar for scene of occurrence shows that service station is situated on the southern side of the road. Road has width of six metres with road margin on either side at a width of seven metres. Accident spot is one metre north of the southern tar end. There is no challenge to Ext.P3. Ext.P3 shows that accident occurred well within the tar portion of the road. In other words, petitioner has brought his pick-up van into the tar portion of the road in reverse direction from the service station. When petitioner was taking the vehicle in reverse direction he had to ensure that there were no vehicle coming along the public road from either side. 4. It is pointed out by learned counsel that going by the prosecution evidence impact of hit was on the rear right side of the pick-up van which indicated contributory negligence on the part of the PW1. Merely from the fact that hit was on the rear right side of the pick-up van, I am unable to say that rashness or negligence was on the part of PW1. Evidence on record shows that accident occurred due to the rashness and negligence of the petitioner as concurrently found by the courts below. Crl.R.P.No.1844/2009 3 5. Exts.P2 and P7 and the evidence of PW3 show that PW1 had lacerated injury left side of head, bleeding from nose and mouth and lost two teeth. That satisfied the definition of 'grievous hurt' under Section 320 of the Code. Therefore conviction under Sections 279 and 338 of the Code required no interference. 6. It is then contended that compensation awarded is excessive. I stated about the nature of injury suffered by PW1. Having regard to the circumstances I am satisfied that compensation of Rs.12,500/- (Rupees Twelve thousand and five hundred only) is sufficient in the ends of justice. There is however no reason to interfere with the substantive sentence of simple imprisonment till rising of the court and default sentence of imprisonment for six months imposed. Resultantly, this revision is allowed in part to the extent that compensation payable to PW1 is modified as Rs.12,500/- (Rupees Twelve thousand and five hundred only). In all other respects revision petition will stand dismissed. THOMAS P.JOSEPH, Judge. cks