IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2485 of 2009() ------------------------------ CRA.408/1999 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.122/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- MANIYAN, S/O.KUTTAN, PULLUVILA PUTHUVALTHEKKE VEEDU, KANJIRAMKULAM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT/STATE AND COMPLAINANT: ---------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2485 of 2009 --------------------------------------- Dated this 13th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-1. Thiruvananthapuram in Criminal Appeal No.408 of 1999 confirming conviction and sentence of petitioner for alleged rash and negligent driving and causing hurt/grievous hurt to the defacto complainant. Case is that on 05-05-1993 at about 2 p.m petitioner drove a mini lorry (hereinafter referred as 'the offending vehicle') along the National Highway from east to west in a rash and negligent manner so as to endanger human life and caused the vehicle hit PW1 who was walking along the southern side of the road in the same direction. It is also stated that petitioner did not provide medical aid for the victim and ran away from the scene. Learned magistrate found petitioner guilty and sentenced him to undergo imprisonment and payment of fine. Appellate court concurred with the conviction and sentence. It is contended by learned counsel that conviction and sentence of petitioner is not legal and proper. 2. That PW1 suffered hurt/grievous hurt on the relevant day is proved by evidence of PW11 who examined him and issued Ext.P8. PW9, Assistant Motor Vehicle Inspector inspected the offending vehicle and issued Ext.P7 certifying that accident was not due to any Crl.R.P.No.2485 of 2009 2 mechanical defect of the vehicle and that its break system was efficient. 3. PW.1, victim and PW2 are direct brothers. Their evidence is that near the place of accident, PW2 and another brother of his are conducting business in separate rooms. At the relevant time PWs.1 and 2 were going to that place. They were walking along the southern side of the road from east to west. At the place of accident, the offending vehicle driven by petitioner came from behind and hit PW1. According to PWs.1 and 2, accident was due to the rashness and negligence of petitioner who was driving the vehicle at excessive speed. It is also their version that immediately after the accident petitioner stopped the offending vehicle and took to his heals. PW4 stated that the offending vehicle belonged to his sister. In answer to the query from the investigating officer he gave Ext.P3, reply stating that petitioner was driving the offending vehicle at the relevant time. Pws.10 and 12 are also witnesses to the accident but they did not support the prosecution. Ext.P4 is the mahazar for scene of occurrence prepared by PW6. The lie of the road at the place of accident is east - west. Tar portion has width of 8m. Accident spot is shown as 10 cm north of the southern tar end. The spot of accident stated in Ext.P4 is not disputed in the courts below at the instance of petitioner. Thus oral and documentary evidence show that accident Crl.R.P.No.2485 of 2009 3 occurred towards the southern extremity of the tar portion. It is also revealed that the offending vehicle came from behind and hit PW1. It is true that PWs.1 and 2 are direct brothers but that itself is not sufficient to discard their evidence and at any rate, PW1 who is the victim. 4. Petitioner has a contention that accident occurred when PW1 was trying to cross the road abruptly. There is no evidence in that line. That apart, since offending vehicle was coming from behind, petitioner could very well see PWs.1 and 2 going along the side of the road. There is no case or evidence that there was any other vehicle on the road so that petitioner could not move the vehicle towards further right side (north side) and avert the accident. There is nothing to show that petitioner was in a situation that he could not avert the accident. Rashness and negligence on the part of petitioner is proved. There is also evidence to show that for no valid reason petitioner refused to provide medical assistance to the injured, PW1. Hence conviction of petitioner does not require interference. 5. For the offence punishable under section 338 of the Penal Code there is substantive sentence of imprisonment for three months apart from the sentence of fine. It is requested by learned counsel that leniency may be shown to the petitioner. Learned counsel submitted that accident occurred about 16 years back. Petitioner is Crl.R.P.No.2485 of 2009 4 the only bread winner of the family. 6. That, the case was pending for such long time by itself is no ground to show leniency. It is a case of rashness and negligence of petitioner resulting in grievous hurt. At the same time, I am also to take into account that petitioner is not shown to be involved in any other similar case. Hence I am satisfied that simple imprisonment for a period of one month for offence under section 338 of the Penal Code is sufficient in the ends of justice. There is no reason to interfere with the sentence of fine awarded by the appellate court four other offences found against petitioner. Resultantly this revision is allowed in part to the extent that sentence awarded to the petitioner for offence under section 338 of the Penal Code is modified as simple imprisonment till rising of the court. Petitioner will get the benefit of set off. In all other respects revision petition will stand dismissed. THOMAS P JOSEPH, JUDGE Sbna/