IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH APRIL 2009 / 8TH VAISAKHA 1931 Crl.Rev.Pet.No. 163 of 2002() ----------------------------- AGAINST THE ORDER DATED 09/07/1999 IN CC.141/1995 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE CRA.413/1999 of SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- NARAYANAN, S/O. RAMAN NAIR, KUNNAMANGALAM. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.P.GOPINATH RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON 28/04/2009 PASSED THE FOLLOWING: S.S.Satheesachandran, J ---------------------- Crl.R.P.No.163 of 2002 ------------------------------- Dated this the 28th day of April 2009 O R D E R The challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for offence under Section 279 and 338 I.P.C. He had pleaded not guilty to the offences. The learned Magistrate, after trial, found him guilty and convicted and sentenced him to undergo simple imprisonment for three months each for the offences under Section 279 and 338 I.P.C directing him to undergo the sentences concurrently. On appeal, the Sessions Judge confirmed the conviction and also the sentence, without any modification. Impeaching the correctness, legality and propriety of the conviction and sentence, the accused has preferred this revision. Crl.R.P.No.163/2002 2 2. The case of the prosecution is that on 29/5/1994 at 4 p.m,the accused drove a goods auto through Kozhikode-Puthiyappa Beach road rashly and negligently, and at enormous speed, endangering public life, and as a result of his reckless driving, the vehicle hit against PW3, a pedestrian, a lady, walking beside the road and she sustained grievous injuries including a fracture over her right collar bone. A crime registered over the incident on the statement given by PW3, the injured, while she was hospitalised, after investigation, led to the indictment of the accused for the offences punishable under Sections 279 and 338 I.P.C. 3. The accused, on appearance before court, when the particulars of the offences were made known, pleaded not guilty. Prosecution examined PWs 1 to 7 and got marked Exts.P1 to P9 to bring Crl.R.P.No.163/2002 3 home the guilt of the accused. The accused when questioned under Section 313 of the Code of Criminal Procedure, maintaining his innocence, contended that he did not drive the offending vehicle at the time of occurrence. No defence evidence was adduced. The learned Magistrate, after appreciating the materials produced, found him guilty of the offence charged and he was convicted and sentenced as indicated above and the same had been confirmed in appeal by the Sessions Judge. 4. I heard the learned counsel for the accused and the learned Public Prosecutor. The main challenge pressed into service by the learned counsel for the accused to assail the conviction are: i) Identity of the accused as the driver of the offending vehicle has not been established by Crl.R.P.No.163/2002 4 convincing legal evidence. ii) No satisfactory evidence was adduced by the prosecution to show that criminal rashness and negligence of the driver of the offending vehicle had caused the occurrence. 5. The prosecution case that the offending vehicle was driven in enormous speed by its driver, according to the counsel, was the sole basis taken by both the courts below to hold that the driver drove the vehicle with culpable rashness and negligence. Speed by itself does not indicate rash and negligent driving, submits the learned counsel placing reliance on Badri Prasad Tiwari v. The State [1994 CRI.L.J.389] and Madhab Bagh v. State of Orissa [1992 CRI.L.J.116. Defence version that the occurrence took place when PW3 crossed the road negligently, it is submitted, deserved consideration and atleast the benefit of doubt Crl.R.P.No.163/2002 5 should have been extended to the accused. The non- production of a sketch map and also absence of any features of applying of brakes at the site of occurrence in Ext.P1 scene mahazer prepared over the scene is also canvassed by the counsel to assail the prosecution case, for which reliance is placed on Dag Bahadur Chetri v. State of Assam [1986 ACJ 420]. The prosecution has not proved the rashness and negligence of the driver of the vehicle caused the occurrence and consequent injury to PW3 the injured, submits the learned counsel. In the alternative, it is submitted, the sentence imposed against the accused is harsh and excessive and it may be modified to fine if the conviction of the accused is found for any reason unassailable. 6. I have perused the records of the case giving consideration to the submissions made by the counsel. Needless to point out, revisional Crl.R.P.No.163/2002 6 jurisdiction is paternal or supervisory intended to correct miscarriage of justice. A revisional court cannot reappreciate evidence without justifiable grounds demanding such exercise to avoid failure of justice. Finding on disputed facts arrived by the inferior courts is not liable to be interfered with on the mere possibility of another view, but only when it is shown that it is perverse and could not have been found on the materials produced in the case. In exceptional cases where it is satisfied that some real substantial injustice has been done, the revisional court will interfere to avoid failure of justice. Both the courts below, on the materials entered in the case, have concurrently found that the accused was the driver of the offending vehicle and the occurrence resulting in causing grievous hurt including a fracture to the collar bone of PW3, the injured, arose on account Crl.R.P.No.163/2002 7 of the rash and negligent driving of the goods auto bearing No.KLL 1534 driven by the accused. To prove the rash and negligent driving of the vehicle by the accused, there was only the evidence of PW3, the injured. Her evidence required corroboration for acceptance is the challenge canvassed. Corroboration is not a rule of law, but one of prudence. It is for the court to decide whether in the given facts in the case, corroboration is required or not. Even the accused had no suggestion that PW3, the injured, nurtured any ill will or animosity towards him to frame him falsely as the driver of the offending vehicle and, further, to perjure against him before a court of law. PW3, in her evidence, has stated that the vehicle after hitting her forcefully and throwing her to the road, proceeded further and was stopped only after covering some distance. The driver then Crl.R.P.No.163/2002 8 came out of the vehicle and reached the spot where she was lying, as lookers rushed in. She had ample opportunity to identify the driver of the offending vehicle and no reason whatsoever had been brought out to doubt the intrinsic worth of her testimony as regards the identity of the driver as the accused. Her evidence on the identity of the driver as the accused is corroborated by Ext.P7 GVR of the vehicle. On the date of occurrence, the accused is shown as the driver of the offending vehicle in that document. Ext.P7 remained unimpeached. So much so, the only other question which required consideration was, whether the vehicle, goods auto, was driven with criminal rashness and negligence by the accused as alleged by the prosecution. Both the courts below have found that reckless driving of the vehicle endangering public resulted in the occurrence Crl.R.P.No.163/2002 9 causing injuries to PW3. The width of the tarred portion of the road at the site of occurrence it has come out was 3.6 metres. The lie of the road was in north-south direction and the vehicle and also PW3, the injured, were proceeding in the same direction. At the time of occurrence, PW3 was walking through the tarred portion at a distance of 30 cms from the eastern tar end of the road. The goods auto driven by the accused hit her from behind. She was walking through the tarred portion and her house is situate on the western side of the road was projected by the defence to contend that the vehicle hit her when she was crossing the road. There is absolutely no material even to draw an inference that the vehicle hit her when she crossed the road. The accused has not offered any explanation as to how the occurrence took place other than making some wild suggestions that PW3 Crl.R.P.No.163/2002 10 carelessly crossed the road without caring for the traffic. Vague hunches and suggestions have no place in a criminal trial. Non-production of a sketch map or absence of any feature of tyremarks at the site does not affect the merit of the prosecution case where the evidence of PW3 as to how the occurrence took place is found reliable and convincing. Both the courts below have found her version that the vehicle after hitting her was stopped only after covering some distance convincing and acceptable. That circumstance is indicative that the vehicle was driven in high speed without caring for the pedestrians moving along the road. The decision cited by the counsel `Badri Prasad Tiwari and Madhab Bagh' (Supra)has no application to the facts of the case. Though speed is not a determining factor for rash and negligent driving the fact that the vehicle driven Crl.R.P.No.163/2002 11 by the accused hit the injured from behind and it could be stopped after the occurrence only after proceeding considerable distance is indicative not only of the speed but the reckless driving of the vehicle by its driver. When direct evidence as to how the occurrence took place, as established by the testimony of PW3 is available, and it has been found reliable, credit worthy and convincing, the non-production of a sketch map or mahazer depicting the presence of or absence of tyre marks of the vehicle has got only innocuous value. The decision cited by the counsel Dag Bahadur Chetri (Supra) has no application to the case where it has been established that PW3, the injured was walking along the extreme eastern side of the road and the occurrence did not take place when she crossed the road as contended by the accused. The finding of both courts below that culpable criminal rashness Crl.R.P.No.163/2002 12 and negligent driving of the offending vehicle by the accused caused the occurrence is fully supported by the materials produced in the case. PW3 has suffered grievous injury including a fracture to her right collar bone. Conviction of the accused in the proved facts and circumstance for the offence under section 279 and 338 I.P.C as founded by both the courts below deserve only to be confirmed, and I do so. Now with respect to the sentence, it is seen maximum indulgence has been shown by the trial Magistrate and no further reduction is permissible having regard to the gravity of the offences committed by the accused. So much so, sentence is also upheld. This revision petition is dismissed. (S.SATHEESACHANDRAN,JUDGE) jsr Crl.R.P.No.163/2002 13 S.SATHEESACHANDRAN,J Crl.R.P.No.163 of 2002 ORDER 28TH DAY OF APRIL 2009