IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 Crl.Rev.Pet.No. 856 of 2000() ----------------------------- CRA.56/1994 of SESSIONS COURT, MANJERI CC.17/1993 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): --------------------- KUNNAMPALLY MUHAMMED BASHEER, S/O VEERANKUTTY. NEDIYIRUPPU AMSOM, EKKAPARAMB, MALAPPURAM BY ADV. SRI.BABU S.NAIR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM 2. THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION, KONDOTTY, MALAPPURAM PUBLIC PROSECUTOR SMT.LAKSHMI RANI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.856/2000 -------------------- Dated this the 20th day of February, 2009 ORDER The accused in C.C.No.17/93 on the files of the Judicial Magistrate of First Class, Malappuram, is the petitioner in this Revision. He was charge sheeted, convicted and sentenced for the offence punishable under Sections 279 and 338 IPC. He challenges the same in this Revision. 2. The case of the prosecution is that on 24.9.1992 at 10.15 a.m, the accused was driving a taxi jeep through the Kondotty Areacode public road in a rash and negligent manner so as to endanger life and he knocked down a child by name Sainaba. The child sustained the following injuries. (a). Abrasion on the nose (b). Abrasion on the right elbow (c). Fracture left femur at its middle 3. Prosecution examined PWs1 to 6. PW1 is the informant, the elder brother of the injured, who gave Crl.R.P.856/2000 2 the F.I.Statement. PWs2 and 3 are the occurrence witnesses. 4. PWs2 and 3 deposed that the vehicle was being driven in a fairly high speed. The suggestion of the accused was to the effect that the child had suddenly tried to cross the road and the Courts below considered the suggestion put forth by the accused, but declined to accept the same. The accused was found guilty of the offence under Sections 279 and 338 of the IPC and the following sentence was imposed on him, which was confirmed by the appellate Court. “In the result, the accused is sentenced to undergo simple imprisonment for one month for the offence under Section 279 IPC and simple imprisonment for 6 months for the offence under Section 338 IPC. The sentence shall run concurrently. Since the accused is sentenced for a substantial term of imprisonment, I think it is not necessary to disqualify him from hold driving license for a further period.” Crl.R.P.856/2000 3 5. Learned counsel for the petitioner submits that the scene mahazar would show that the scene of occurrence is the tarred portion of the road and the vehicle was proceeding from south to north. It is further contended that PWs2 and 3 have also deposed that a large number of children were walking along both sides of the road at that time, on their way to school. PW2 subsequently deposed that the vehicle was being driven at an over speed. In cross-examination, when he was asked to what he thinks as over speed, he deposed that, according to him, over speed is a speed exceeding 60 kms. per hour. PW2, the occurrence witness, is a labourer and all that can be inferred from the statement as aforementioned, is that he perceived the vehicle to be driven at a fairly high speed. It is on a similar line that PW3 has also deposed. 6. I find it difficult to accept the contention of the learned counsel for the petitioner that the evidence on record suggests that the child had suddenly tried to cross the road. There is no specific evidence in this Crl.R.P.856/2000 4 regard. The answer given by the accused in 313 statement is to the effect that he was driving the vehicle at a low speed and the child had suddenly crossed the road. It is difficult to accept the contention of the accused that the vehicle was being driven at a very low speed. PWs2 and 3 deposed to the contra. There is no specific suggestion on the part of the accused as to why they should not be deposing the truth. That there were a large number of children, who were on either side of the road proceeding on their way to school, is deposed by PWs1 and 2 and there is no serious suggestion to the contra in that regard. If that be so, there was an added responsibility on the part of the driver of any vehicle to slow down the vehicle to such an extent that the chance of any accident in that regard is minimized. As pointed out by the learned Public Prosecutor, the scene mahazar does not suggest that the vehicle was on the middle of the road. 7. This Court in Revision cannot re-appreciate the evidence so as to arrive at a different conclusion of fact unless such findings of facts are perverse or otherwise Crl.R.P.856/2000 5 results in manifest injustice. I do not find any reason to interfere with the conviction of the accused for the offences under Sections 279 and 338 of the IPC. 8. Learned counsel for the petitioner submits that a substantive sentence of imprisonment may not be appropriate in the present case. I heard learned Public Prosecutor also in this regard. I find force in the submission made by the learned counsel for the petitioner. I take note of the fact that the accused had stopped the vehicle and had taken the child to the hospital. This is spoken to by PWs2 and 3, the occurrence witnesses. For all these reasons, I am of the view that a sentence of imprisonment till the rising of the Court, for both the offences along with a direction to pay fine and compensation would suffice, in the interest of justice. 9. Accordingly, while upholding the conviction, accused is sentenced to undergo simple imprisonment till the rising of the Court for the offence punishable under Section 279 of the IPC. He is also directed to pay an Crl.R.P.856/2000 6 amount of Rs.5,000/- by way of compensation to the injured. Such compensation amount shall be paid within two months from today. It is made clear that if the accused fails/refuses to pay the compensation amount, he shall undergo simple imprisonment for a period of three months. Accused is also sentenced to undergo imprisonment till the rising of the Court for the offence under Section 338 of the IPC. He is further directed to pay an amount of Rs.5,000/- as compensation to the injured. If he fails/refuses to pay the compensation, he shall undergo simple imprisonment for a period of three months. The accused shall appear before the Court below on 6.4.2009 to undergo sentence of imprisonment. The Criminal Revision Petition is disposed of as above. V.GIRI, Judge mrcs