IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 3953 OF 2006() ------------------------------ CRA.230/2004 OF ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.355/1999 OF JUDICIAL FIRST CLASS MAGISTRATE PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------- RAJENDRAN, S/O. KRISHNAN, MADATHODI HOUSE, EDATHANATTUKARA, VATTAMANNAPURAM, PALAKKAD DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------ STATE OF KERALA, REP. BY REP. BY THE S.I. OF POLICE,PERINTALMANNA, BY THE GOVT.PLEADER, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3953 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- I have gone through the records produced by learned counsel for petitioner. 2. This revision is in challenge of the judgment of learned Additional Sessions Judge (Adhoc - Fast track court-III) Manjeri in Crl. Appeal No.230 of 2004 confirming the conviction and sentence of petitioner for offences punishable under Sections 279 and 339 of the Indian Penal Code (for short, “the Code”). 3. On 22.8.1999 at about 5.45 p.m. P.W.2 was riding a motor bike from north to south along Pattambi-Perunthalmanna road with his wife, P.W.3 sitting on the pillion and their two children also riding on it. When that motor bike reached the place of occurrence the bus driven by the petitioner came from south to north allegedly at an excessive speed so as to endanger human life, hit the motor bike and caused hurt/grievous hurt to P.Ws.2 and 3 and their children. On the information given by P.W.1 police registered a case for rash and negligent driving against the petitioner. P.Ws.1 to 4 were examined by the prosecution to prove the accident and of them, P.Ws.1 and 4 refused to support the prosecution. P.Ws.2 and 3 deposed about the CRL. R.P. No.3953 of 2006 -: 2 :- accident and attributed rash and negligent driving of the bus by the petitioner as the cause of the accident. Exhibit P7 is the mahazar for scene of occurrence prepared by the investigating Officer. Exhibits P5 and P6 are the reports of the Assistant Motor Vehicles Inspector concerning the vehicles involved. 4. That P.Ws.2 and 3 and their children suffered hurt/grievous hurt is proved by Exts.P2 to P4. Though P.Ws.1 and 4 did not support prosecution P.Ws.2 and 3 stated that petitioner was driving the offending vehicle at the relevant time. Courts below relying on that evidence and Ext.P9, trip sheet concluded that petitioner was driving the offending vehicle. There is no reason to interfere with the findings entered by the courts below in this regard. 5. It is contended by counsel for petitioner that there is no reliable evidence to show that there was any rashness or negligence on the part of the petitioner. Counsel contends that there was a stationary lorry on the western side of the road near the place of accident which is admitted by P.W.2 also. Petitioner was in his attempt to overtake that stationary lorry and hence it can be treated as an error of judgment on the part of the petitioner. Exhibit P7, mahazar for scene of occurrence shows the lie of road at the place of occurrence as north-south. Width of the tarred portion is 6 metres. CRL. R.P. No.3953 of 2006 -: 3 :- Accident spot is one metre west of the eastern tar end. These facts in Ext.P7 are not successfully challenged by the petitioner. Indisputably the bus driven by the petitioner was coming from south to north while the motor bike was coming from north to south. It is therefore clear that accident has occurred on the wrong side of the bus. 6. Assuming that there was a stationery lorry on the western side of the road it was the look out of the petitioner to ensure while overtaking the stationary lorry that there was no vehicle coming from the opposite side. On the facts of the case and evidence let in, I find no reason to interfere with the concurrent findings entered by the courts below that petitioner was rash and negligent in driving the bus and that resulted in the accident. Conviction therefore is unassailable. 7. Petitioner has been awarded simple imprisonment for two months under Sec.279 and three months under Sec.338 of the Code apart from payment of fine of Rs.1,000/- under the latter Section. Counsel for petitioner submitted that petitioner comes from poor financial and social circumstance, is a driver by profession and that if his imprisonment is confirmed it will affect his employment as a driver. He pleaded that sentence of imprisonment may be modified as fine. 8. I have concurred with the finding entered by the courts CRL. R.P. No.3953 of 2006 -: 4 :- below that petitioner was rash and negligent in driving the offending vehicle. But in considering whether leniency should be shown in the matter of sentence, attending circumstances should be looked into. Though P.Ws.2 and 3 have a case that the bus was driven at an excessive speed Ext.P7 does not show presence of any tyre mark. Exhibits P5 and P6 show that the damage caused to the vehicles are not that much heavy. Hence it may be that the petitioner was not driving the bus at an excessive speed as stated by the prosecution. It is also seen from Ext.P5 that about 30 metres north of the accident spot there is a curve towards east and concededly, motor bike which P.W.2 was riding came from that side. In these circumstances I am inclined to think that imprisonment till rising of the court for offences punishable under Secs.279 and 338 is sufficient in the ends of justice. At the same time in a case of this nature petitioner must be made liable to pay compensation to the victims. Exhibits P2 to P4 show that though not that much serious, P.Ws.2 and 3 and their children suffered fracture. They must have undergone hospitalisation and treatment incurring expenses. That they may have received compensation from the insurer of the offending vehicle is a different matter. On the facts and circumstances of the case I am persuaded to think that a sum of Rs.10,000/- payable to P.Ws.2 and 3 and their CRL. R.P. No.3953 of 2006 -: 5 :- children as compensation will be sufficient in the ends of justice. In default of payment, petitioner shall undergo simple imprisonment for two months. Resultantly, this revision is allowed in part in the following lines: (i) Sentence of fine awarded under Section 338 of the Code is set aside. (ii) Substantive sentence awarded under Secs.279 and 338 of the Code are modified as simple imprisonment till rising of the court. (ii) petitioner is directed to deposit in the trial court for payment to P.Ws.2 and 3 as compensation Rs.10,000/- (Rupees Ten thousand only) within two months from this day failing which he shall undergo simple imprisonment for two months. Petitioner shall appear in the trial court on 28.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv