IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3196 OF 2008() ------------------------------ CRA.143/2007 of SESSIONS COURT, PATHANAMTHITTA CC.42/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- RAJAGOPALAN NAIR,S/O.PADMANABHA KURUP, THUZHARAYIL VEEDU,PEZHUMMOOTTIL PERUMPULICKAL MURI PANDALAM THEKKEKARA VILLAGE,PATHANAMTHITTA,. BY ADV. SRI. K.SHAJ SRI.SAJJU.S RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLILC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3196 OF 2008 ------------------------------------------ Dated this the 9th day of December, 2008 O R D E R Revision petitioner was convicted and sentenced for the offence under section 279, 337 and 338 of Indian Penal Code by Judicial First Class Magistrate, Adoor in C.C. 42 of 2000. Conviction and sentence were confirmed by Sessions Judge, Pathanamthitta in Crl. Appeal 143 of 2007. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel challenged the conviction firstly on the ground that identity of revision petitioner as the driver of autorikshaw involved in the incident was not established. Secondly it was argued that prosecution case that the autorikshaw hit on the electric post and thereafter capsized cannot be correct as Ext.P4 scene mahazar does not show existence of an electric post at the scene of occurrence. Thirdly it was argued that Ext.P1 F.I. Statement was lodged only two days after the date of the incident and the delay was not properly explained and on the delayed F.I.R. petitioner should CRRP3196/2008 2 not have been convicted. Learned counsel finally submitted that revision petitioner is aged 69 years and at this stage he may not be sent to prison and the sentence may be modified. 4. Though learned counsel challenged the identity of the revision petitioner as driver of the autorikshaw involved in the incident, on going through the judgments of the Courts below, I find no reason to interfere with the factual findings. PWs 1 and 2 are the injured passengers of autorikshaw KL-3C/5108. Both PWs 1 and 2 identified revision petitioner as the driver of the autorikshaw in which they were travelling on 1.12.1999 along Adoor-Panthalam road. Though learned counsel argued that evidence of PWs 1 and 2 with regard to the identity should not have been accepted by the Courts below, the learned Magistrate who had the opportunity to know the demeanour of the witness and learned Sessions Judge on reappreciation of evidence found that evidence of PWs 1 and 2 with regard to identity was credible and reliable. I find intrinsic evidence to support the evidence of PWs 1 and 2. Exts.P2 and P3, the wound certificates of PWs 1 and 2, show that PWs 1 and 2 were taken to the doctor by the revision petitioner. Evidence of PWs 1 and 2 show that revision petitioner is known by name 'Gopi Pillai'. That version CRRP3196/2008 3 of PWs 1 and 2 was not challenged in cross-examination and therefore it is to be taken that revision petitioner is known by name 'Gopi Pillai'. The wound certificates show that the injured were brought to the hospital by Gopi Pillai. Therefore that intrinsic evidence fully supports the evidence of PWs 1 and 2 with regard to identity of revision petitioner as the driver of the autorikshaw. Therefore I find no reason to interfere with the finding of the Courts below that it was revision petitioner who was driving the autorikshaw KL-3C/5108 with PWs 1 and 2 as passengers on 1.12.1999 at about 4.45 p.m. along Adoor- Panthalam road. 5. Though Ext.P4 mahazar does not show existence of an electric post, evidence of PWs 1 and 2 corroborated by Exts.P2 and P3 wound certificates proved by the evidence of PW4 the doctor establish that PW1 sustained a fracture, a grievous hurt and PW2 simple hurt when the autorikshaw driven by revision petitioner capsized. The evidence of PWs 1 and 2 establish that the autorikshaw capsized only due to the rash and negligent driving of the vehicle by revision petitioner. Therefore even if prosecution did not establish existence of an electric post on which the autorikshaw collided before capsizing, evidence of CRRP3196/2008 4 PWs 1 and 2 establish that revision petitioner was driving the autorikshaw rashly and negligently so as to endanger human life and by such driving caused grievous hurt to PW 1 and simple hurt to PW2. The fact that Ext.P1 F.I. Statement was recorded only two days after the date of incident by itself is not a ground to disbelieve prosecution case, especially when evidence establish that immediately after the incident PWs 1 and 2 were taken to the hospital and treated as inpatients. Delay is therefore not fatal. Evidence conclusively establish that revision petitioner was driving the autorikshaw rashly and negligently so as to endanger human life and by such driving caused grievous hurt to PW1 and simple hurt to PW2. Conviction of the revision petitioner for the offence under section 279, 337 and 338 of IPC is therefore perfectly legal. 6. Then the only question is regarding the sentence. The sentence awarded for the offence under section 279 of IPC is imprisonment for ten days and a fine of Rs.1,000/- and for the offence under section 337 IPC simple imprisonment for ten days and a fine of Rs.500/- and for the offence under section 338 of IPC simple imprisonment for ten days and a fine of Rs.1,000/-. Considering the fact that the incident was in 1999 and the CRRP3196/2008 5 revision petitioner is aged 69 years, interest of justice will be met if the sentence for the offence under section 279 IPC is modified to the maximum fine provided and for the offence under section 337 and 338 IPC, imprisonment till rising of Court in addition to compensation to the injured PWs 1 and 2. Revision is allowed in part. Conviction of the revision petitioner for the offence under section 279, 337 and 338 of IPC is confirmed. The sentence awarded is modified. Revision petitioner is sentenced to a fine of Rs.1000/- and in default simple imprisonment for ten days for the offence under section 279 of IPC. For the offence under section 337 IPC, revision petitioner is sentenced to imprisonment till rising of Court and a compensation of Rs.3,000/- to PW2, Vijayamma. For the offence under section 338 IPC revision petitioner is sentenced to imprisonment till rising of Court and a compensation of Rs.7,000/- to PW1, Lalitha. Revision petitioner is directed to appear before Judicial First Class Magistrate, Adoor on 20.1.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-