IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Crl.Rev.Pet.No. 1405 of 2001() ------------------------------------------ CRA.42/1999 of II ADDL.SESSIONS COURT, KOLLAM CC.12/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOLLAM .................... PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------- ASSANAR, S/O. ABDUL SALI, MANAKATTUVILAKOM HOUSE, SHESHENKADAVU DESOM, ATTUPURAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.K.SATHEESH KUMAR MR.T.A.UNNIKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1405 of 2001 ORDER ON CRL.MP.NO.6775/2001 IN CRL. RP. NO.1405/2001 DISMISSED 29/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1405 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2009 ORDER Revision petitioner is the accused in C.C.No.12/1995 of Judicial First Class Magistrate Court II, Kollam and appellant in Crl.Appeal NO.42/99 of Sessions Court, Kollam. He was convicted for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC and was sentenced to undergo simple imprisonment for six months under Section 304(A) and 338 of IPC each and to undergo simple imprisonment for three months under Section 279 of IPC. He was further sentenced to undergo simple imprisonment for three months under Section 337 of IPC. The sentences were ordered to run concurrently. On appeal the conviction and sentence of the revision petitioner was confirmed. Now the accused has come up in revision challenging his conviction and sentence. 2, The case of the prosecution as shaped in evidence before the trial court was that on July 27, 1994, the accused drove his tempo Crl.R.P.No.1405/01 Page numbers van bearing Reg. No.KL.01/C.7642 in a rash and negligent manner so as to endanger human life through the Kollam-Thiruvananthapuram road from west to east and at about 6.30 AM, when it reached Parakkulam junction it collided head on with a Mini lorry bearing Reg.No.KL.2/5133 driven by CW5 which was coming in the opposite direction causing death of two persons and causing simple injuries to CWs 1 to 10 and grievous injuries to CW5 and that thereby the accused has committed the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. 3. When the accused appeared before the trial court, he pleaded not guilty to a charge under Sections 279, 337, 338 and 304(A) of IPC. PWs 1 to 18 were examined and Exts.P1 to P26 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C, the accused denied having committed any offence. No defence evidence was adduced. 4. On an appreciation of evidence, the trial court found the accused guilty of the offence punishable under Sections 279, 337, 338 and 304(A) of IPC , convicted him and sentenced him as aforesaid Crl.R.P.No.1405/01 Page numbers which was confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Sections 279, 337, 338 and 304 (A) of IPC by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. PW1 to PW17 were examined and Exts.P1 to P26 were marked by the prosecution. PWs1 to 4 and PW6 are the injured persons. PW 5 is the wife of deceased Badarudeen who died in the accident. PW 7 is the MVI who inspected both the vehicles and issued the reports Exts.P2 and P3. He testified and reported that there are no mechanical defects to the vehicles. PW 8 is an alleged eye witness to the incident who turned hostile. PW9 is an attestor to scene mahazar Ext.P23 who also turned hostile. PW10 is the Medical Officer of Crl.R.P.No.1405/01 Page numbers Medical College, Thiruvananthapuram who conducted postmortem on the dead body of deceased Mathyas and issued the postmortem certificate Ext.P4. PW11 is the doctor who treated the injured persons and issued the wound certificates Exts.P5 to P16. PW12 is the Village Officer who prepared the plan of scene of accident Ext.P17. PW13 is the Doctor who initially treated deceased Badarudeen and issued the discharge certificate Ext.P18. PW14 is the owner of the offending tempo van. PW15 is the Circle Inspector of Police who laid the charge before the trial court. PW16 is the Head Constable who recorded the FIS and registered the FIR. He has conducted preliminary investigation. He prepared the scene mahazar Ext.P23 and body mahazar of deceased Mathyas Ext.P24. PW17 is the then Assistant Sub Inspector of Police who prepared the inquest report Ext.P25 of deceased Mathyas. PW18 is the Sub Inspector who completed the investigation. 7. The accident as such is not disputed. The fact that the accused who was driving the offending tempo van at the time of accident is also proved by the evidence of prosecution especially the Crl.R.P.No.1405/01 Page numbers evidence of PW 14, the registered owner of the offending tempo van. PWs 4 and 6 the passengers of the offending tempo van identified the accused as the driver of the offending temp van at the time of the accident. Regarding the identity of the accused, their evidence was not shaken in cross examination. Thus the prosecution has succeeded in proving that accused was the driver of offending temp van at the time of accident. 8. The next question for consideration is whether CW1 to 4 and CWs 6 to 10 sustained simple injuries and CW5 sustained grievous injuries in the accident and one Mathyas and Badarudeen died as a result of the injuries sustained in the accident. Badarudeen was travelling in the tempo van and Mathyas was travelling in the mini lorry. Mathyas died on the spot. Ext.P4 is the postmortem report issued by PW 10, the Medical Officer of Medical College, Thiruvananthapuram who conducted postmortem on the dead body of the deceased Mathyas. It is proved by the evidence of PW10 and Ext.P4 that deceased Mathyas died as a result of the injuries sustained in the accident. Crl.R.P.No.1405/01 Page numbers 9. Deceased Badarudeen sustained injuries in the accident. PW13 the doctor who treated him has issued Ext.P18 discharge certificate . PW13 testified that after Badarudeen was treated at Medical College, Thiruvananthapuram, he was referred back to his hospital and that Badarudeen died on September 1, 1994 while undergoing treatment. Thus it is proved that deceased Badarudeen died as a result of the injuries sustained in the accident. 10. Exts.P5 to P16 are the wound certificates issued with respect to the injured persons CWs 1 to 4 and CWs 6 to 10. Ext.P13 is the wound certificate of CW5, the driver of mini lorry. Those wound certificates were proved by PW11, the doctor who treated them which shows that CWs 1 to 4 and 6 to 10 sustained simple injuries and CW5 sustained grievous injuries. 11. The nest question to be considered is whether the accident occurred due to the rash and negligent driving of the offending tempo van by the accused. Ext.P23 is the scene mahazar prepared by PW16. It is seen from Ext.P22 that tempo van was on the wrong side and the mini lorry was on the right side of the road. Out of the ten injured Crl.R.P.No.1405/01 Page numbers persons, CWs 1, 2, 3, 4 and 6 were examined as PW 2, ,3, 1, 4 and 6 respectively by the trial court. They have categorically stated that tempo van was driving at a high speed. PW 4 and PW 6 testified that in in spite of their request, accused did not reduce the speed. The would say that the driver of the tempo van suddenly applied the break and lost control and accident occurred. PW8 the alleged eye witness to the incident turned hostile and did not support the prosecution. The trial court as well as the lower appellate court has chosen to believe the evidence of PWs 1, 2, 3, 4 and 6. I have gone through their evidence. I find no reason to come to a different conclusion. Therefore, I confirm the finding of the trial court which is confirmed in appeal that the accident occurred due to the rash and negligent driving of the tempo van by the accused and that in the accident, PWs 1 to 4 and 6 to 10 sustained simple injuries and CW5 sustained grievous injuries and two persons died. That being so, the conviction of the revision petitioner under Sections 279, 337, 338 and 304(A) of IPC rendered by the trial court which is confirmed in appeal has to be upheld. Crl.R.P.No.1405/01 Page numbers Point No.2 12. As regards the sentence, the trial court sentenced the accused to undergo simple imprisonment for six months under Section 304(A) and 338 of IPC each and to undergo simple imprisonment for three months under Section 279 of IPC. He was further sentenced to undergo simple imprisonment for three months under Section 337 of IPC. The lower appellate court confirmed the said sentence in appeal. I find no special reasons to reduce the sentence as two persons died in the accident and about 10 persons injured. In the result, confirming the conviction and sentence of the revision petitioner , the Criminal Revision Petition is dismissed. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1405/01 Page numbers