IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1167 of 2002(C) ------------------------------- CRA.246/1997 of ADDL.SESSIONS COURT, THALASSERY CC.653/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- K.BALAKRISHNAN, S/O.KUMARAN, DRIVER, MORAZHA AMSOM, KANNUR DESOM, KANNUR. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-9-2009, THE COURT ON 8-12-2009 PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO. 6178/2002 IN CRL.R.P.NO. 1167/2002. DISMISSED. 8-12-2009 SD/-M.C. HARI RNAI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ========================== CRL.R.P. NO. 1167 OF 2002-C ORDER 8-12-2009 =========================== M.C. HARI RANI, J. ====================== CRL.R.P.NO. 1167 2002 ======================= Dated this the 8th DAY OF DECEMBER 2009 ORDER The accused is the revision petitioner. He assails the concurrent verdict of guilty, conviction and sentence imposed on him under Sections 279, 337, 338 and 304-A of the Indian Penal Code. The licence of the accused was suspended for two years by the learned Magistrate. That order was set aside by the learned Sessions Judge in Crl.Appeal No. 246 of 1997 preferred by the accused before the Sessions Court. 2. The prosecution case is that the accused drove a lorry No.KLZ 9018 along the National Highway at Keecherikunnu at about 1.15 p.m. on 30-1-1994 in a rash and negligent manner at an excessive speed. On account of such rashness and negligence, the vehicle driven by the accused hit against jeep No.KRD-379 which came from the opposite side causing injuries to the driver and the passengers in the jeep. The driver and one CRL.R.P. 1167/2002 -2- of the passengers in the jeep succumbed to the injuries. PWs.6 and 12 sustained grievous injuries. PWs.2 to 5 sustained minor injuries. After investigation, the police filed charge sheet against the accused. 3. The accused entered appearance and denied the offence alleged against him. Thereupon the prosecution examined PWs.1 to 23 and marked Exts.P1 to P20. PWs.2 to 6 and 12 are the injured and the eye witnesses and were tavelling in the jeep which involved in the accident. PW19 recorded Ext.P1 first information statement regarding the incident given by PW1 and registered the F.I.R., Ext.P1(a). Ext. P4 is the scene mahazar prepared by PW22, the investigating officer. PW9 is the witness in Ext.P4. PW17 preferred the site plan, Ext.P15. PWs.7 and 8 identified the dead bodies of Kunhiraman and Krishnan, and also signed as witnesses in Exts.P2 and P3 inquest reports prepared by PWs.22 and 20 respectively. PW11 is the Doctor who conducted post mortem examination on the body of deceased Kunhiraman. Ext.P5 is the post mortem certificate. PW21 is the CRL.R.P. 1167/2002 -3- Doctor who conducted post mortem examination on the body of deceased Krishnan. Ext.P20 is the post mortem certificate. The wound certificates, Exts.P11 to P14, issued by Doctor Sasikala were proved by PW16, Dr.Neena, the R.M.O.at A.K.G.Hospital. Wound certificates, Exts.P16 to P19 issued by Dr.Deepa were proved by Dr.Neena, PW18 who was already examined as PW16 earlier. PW15, Assistant Motor Vehicle Inspector at Kannur inspected the jeep and the lorry on 1-2-1994 ad prepared the reports, Exts.P9 and P10 respectively. 4. PW13 is the R.C. owner of the lorry which involved in the accident and he proved Ext.P6 as the declaration given by him to the police that the lorry which involved in the accident was under his ownership at the relevant time and that lorry was driven by the accused on the date and time of the incident. PW14 proved Ext.P7 as the GVR of the lorry handed over by the accused which was seized as per Ext.P8 seizure mahazar. It is revealed from Ext.P7 that the accused Balakrishnan was the driver of the lorry which involved in the incident. CRL.R.P. 1167/2002 -4- 5.The accused did not dispute the fact that he was driving the vehicle at the relevant time. He put forward a different version to explain the accident. According to him, he was driving the lorry carefully and when reached at the place of accident, the jeep came from the opposite side after overtaking another lorry and hit against the lorry driven by him and the incident happened not due to his negligence and he is innocent. No defence evidence was adduced. 6. The courts below came to the concurrent conclusion that the accident occurred due to the rashness and negligence of the petitioner – accused. Accordingly, they proceeded to pass the impugned judgment. 7. The learned counsel for the petitioner and the learned Public Prosecutor were heard. Both the courts below have chosen to place reliance on the oral evidence of PWs. 1 to 6 and 12. PW1 has given Ext.P1 first information statement regarding the incident to the police. According to him, he did not sustain any injuries and he was also travelling in the jeep at the time of CRL.R.P. 1167/2002 -5- accident. PWs. 2 to 6 and 12 sustained injuries and were also examined on the side of the prosecution as the eye witnesses of the incident. I have gone through the depositions including the cross examination of PWs.1 to 6 and 12 in detail. I find no reason to disbelieve their evidence. So also, no reason has been suggested on the side of the defence as to why they should speak falsehood against the accused and in favour of the injured and deceased/prosecution. The evidence of PWs.2 to 6 and 12 is eminently supported and corroborated by the version given by PW1 in Ext.P1 First information statement recorded by PW19, who registered F.I.R.(Ext.P1(a)). The incident had taken place at 1.15 p.m. on 30-1-1994 and the first information statement is lodged on the same day at 1.45 p.m. 8. The road at the scene of the incident lies North South as revealed from Ext.P4 scene mahazar. There is clear visibility towards both sides from the scene and it is a straight road. The tarred portion of the road has a width of 5.9 metres. The lorry driven by the accused was proceeding from North to South. The CRL.R.P. 1167/2002 -6- incident happened at a distance of 1.6 metres away from the western end of the tarred road towards east and on the wrong side of the lorry which hit against the jeep driven by deceased Krishnan which was proceeded from South to North through the western side of the road. It was not a head on collision. It has come out in evidence that the lorry driven by the accused came from the opposite side in high speed through the wrong side and hit against the right side of the jeep. Because of the impact of the hit, the jeep was thrown out of the road to the nearby property as deposed by PW1 from the witness box. Even after the incident, the accused could not control the lorry and stopped the vehicle about 18 metres away from the place of the incident, though there was no failure to the brake system of that vehicle as reported by the Assistant Motor Vehicle Inspector, PW15 in Ext.P10. According to PW15, the Assistant Motor Vehicle Inspector, the damage caused to the jeep was on its right side as reported in Ext.P9 whereas the damage to the lorry was on its front side, i.e. to the bumper and right mud guard and to the CRL.R.P. 1167/2002 -7- headlight etc. This spot of occurrence is identified by PW22 in Ext.P4 scene mahazar. The identification of the scene of occurrence in Ext.P4 is consistent with the oral evidence tendered by PWs.1 to 6 and 12. The accident took place on the western half of the road. Glass pieces were found at the scene of occurrence as stated in Ext.P4 scene mahaazar prepared by PW22. Evidently, the vehicle, lorry driven by the accused from north to south had gone to the western portion of the tarred road and hit against the jeep driven by deceased Krishnan from south to north, causing injuries to the driver and the passengers therein. The driver and one of the passengers in the jeep succumbed to the injuries. No evidence was adduced on the defence side to doubt or discard the evidence tendered on the side of the prosecution which is found to be satisfactory and inspiring. 9. The defence taken by the accused that he was driving the lorry carefully and the jeep came from the opposite side and hit against the lorry after overtaking another lorry and the incident CRL.R.P. 1167/2002 -8- happened due to the negligence of the jeep driver and that he is innocent etc. have not been substantiated. Instead, it is proved from the oral and documentary evidence adduced on the side of the prosecution as mentioned above that the lorry driven by the accused from north to south came in high speed rashly and negligently without control and hit against the right side of the jeep driven by the deceased Krishnan from south to north and the accident occurred from the western portion of the road, i,.e. the wrong side of the lorry driven by the accused. 10. I must also alertly bear in mind the nature and quality of the jurisdiction of this Court in revision. Even the quest for a better conclusion on facts cannot persuade a court of revision to invoke its revisional jurisdiction of superintendence and correction to interfere with the findings of fact rendered and the discretions exercised by the trial court. I do not find any sufficient reason to invoke the revisional jurisdiction to interfere with the discretion exercised by the courts below in choosing to place reliance on the oral evidence of the witnesses examined on CRL.R.P. 1167/2002 -9- the side of the prosecution and also the documentary evidence. At any rate, I am not in these circumstances satisfied that interference with the verdict of guilty and conviction is called for. Therefore, the conviction shall have to be confirmed. I do so. 11. Coming to the question of sentence, the courts below have convicted the accused and sentenced to undergo rigorous imprisonment for a period of three months each under Sections 279 and 337 of the Indian Penal Code, six months under Section 338 I.P.C. and two years under Section 304 A I.P.C. with the direction that the sentences shall run concurrently. The licence of the accused was suspended for a period of two years by the trial Judge. The learned Sessions Judge confirmed the conviction and sentence ordered by the trial court and set aside the order of the trial court as regards the suspension of the driving licence of the accused. 12. It is submitted by the learned counsel for the petitioner that the sentence imposed by both the courts below on the petitioner for the offence alleged under Sections 279, 337, 338 CRL.R.P. 1167/2002 -10- and 304-A is excessive and pray to modify the sentence. The prosecution has no case that any similar offence has been committed by the petitioner either before or subsequent to this incident. Passage of about 15 years and the fact that the trauma of this prosecution endured by the revision petitioner, all these years is a factor which has to be taken into account. I am however not satisfied that this is a fit case where the provisions of the Probation of Offenders Act can be invoked. The accused is not shown to have any of the criminal antecedents. Considering all circumstances, particularly, the lapse of long period of time after the incident,I am satisfied that though deterrent substantive sentence of imprisonment is essential, such deterrence does not necessarily depend on the length of the period that the offender spends behind the bars. Imposition of maximum sentence of fine under Sections 279, 337 and 338 I.P.C. coupled with substantive sentence of simple imprisonment for one year under Section 304-A IPC and also to pay compensation under Section 357(3) Cr.P.C. to the legal heirs of deceased Kunhiraman and Krishnan CRL.R.P. 1167/2002 -11- and in default to pay the compensation, to undergo simple imprisonment for six months shall serve the ends of justice. The challenge succeeds only to the above extent. 13. In the result: a) This revision petition is allowed in part. b)The verdict of guilty and conviction of the revision petitioner under Sections 279, 337, 338 and 304-A I.P.C. are upheld. c)The sentence imposed on the revision petitioner is modified and reduced. He is sentenced to pay a fine of Rs.1,000/- each under Sections 279 and 338 I.P.C. and in default to undergo simple imprisonment for a period of one month each. He is further sentenced to pay a fine of Rs.500/- for the offence under Section 337 IPC and in default to undergo simple imprisonment for 15 days. The sentence imposed for the offence punishable under Section 304-A I.P.C. is reduced to simple imprisonment for one year and also to pay Rs.50,000/- (Rupees fifty thousand only) as compensation under CRL.R.P. 1167/2002 -12- Section 357(3) Cr.P.C.to the legal heirs of deceased Krishnan and Kunhiraman and in default to undergo simple imprisonment for six months. d) The revision petitioner shall appear before the trial court on 4-1-2010 to receive the sentence. e) In case of deposit of the compensation as directed above, the court below shall inform the legal heirs of deceased Kunhiraman and Krishnan to receive the same from the court. Rs.25,000/-- shall be paid to the legal heirs of deceased Krishnan in equal shares. Rs.25,000/- shall be paid to the legal heirs of deceased Kunhiraman in equal shares. f) The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed. Needless to say, the learned Magistrate shall be at liberty to invoke his powers under Section 446 of the Cr.P.C.,if the petitioner does not appear as directed above. M.C. HARI RANI ks. JUDGE CRL.R.P. 1167/2002 -13- ks.