IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.REV.PET.NO. 1639 OF 2009() ------------------------------------------- CRA.402/2005 OF II ADDL. SESSIONS COURT, PALAKKAD CC.187/2004 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- MANOJ, S/O.MALLUNNI, KORANGODE VEEDU, THENKURUSSY P.O., PALAKKAD. BY ADV. SRI.K.ANAND RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT: -------------------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, KONGAD POLICE STATION. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1639 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Second Additional Sessions Judge, Palakkad in Crl.Appeal No.402 of 2005 confirming conviction and sentence of petitioner for offences punishable under Sections 279, 337 and 304A of the Indian Penal Code. 2. Case is that on 14.5.2004 at about 8.45 a.m. petitioner drove a tractor along the Mundur-Cheruplassery road in a rash and negligent manner so as to endanger human life and in front of Mundur High School caused that tractor hit an autorikshaw which came from the opposite side resulting in injury to passengers and driver. Driver of the autorikshaw succumbed to the injuries. Learned magistrate found that the accident occurred due to the rashness and negligence of petitioner, convicted and sentenced him to undergo imprisonment for various periods. Learned Sessions Additional Judge confirmed conviction and sentence. It is contended by learned counsel that there is no sufficient evidence to show that there was rashness or negligence on the part of petitioner. 3. It is not disputed, and Exts.P4 to P6 and evidence of P.Ws.8 CRL. R.P. No.1639 of 2009 -: 2 :- show that passengers in the autorikshaw including P.Ws.4 to 6 and its driver suffered hurt and that the driver succumbed to the injuries. P.W.11, Assistant Motor Vehicles Inspector who inspected the vehicles issued Exts.P7 and P8, reports certifying that the accident was not due to any mechanical defect of either of the vehicles. 4. Evidence regarding the alleged accident is given by P.Ws.2, 4 to 6 and 7. Of them P.W.2 is the brother of deceased, driver. He claimed to have witnessed the accident. Exhibit P2, first information was given by P.W.2. P.Ws.4 to 6 are passengers in the autorikshaw. P.W.7 is an independent witness. Their evidence is that at the relevant time the tractor was being driven by petitioner in a rash and negligent manner and at excessive speed and that caused the accident. It is also revealed from their evidence that at the relevant time the autorikshaw was coming from west to east while tractor came from east to west. Exhibit P3 is the mahazar for scene of occurrence prepared by P.W.12, Sub Inspector. 5. So far as identity of driver of the tractor is concerned there is evidence of P.Ws.2 and 4 to 6 and 7. They have identified petitioner as the driver of the offending vehicle. Courts below have accepted that and I do not find reason to interfere with that finding. CRL. R.P. No.1639 of 2009 -: 3 :- What remained for consideration is only whether finding of courts below regarding rashness or negligence of petitioner as the cause of accident is legal and proper. 6. It has come in the evidence of P.Ws.4 to 6 that at the relevant time the tractor was having an accessory attached to it. P.W.11 stated that if the tractor was having an accessory it could not have been driven at an excessive speed. That evidence of P.W.11 was taken note of by the learned magistrate also to hold that even if it is assumed that tractor was not driven at excessive speed as stated by P.W.11 that did not by itself mean that there was no rashness or negligence on the part of petitioner. 7. Under Secs.279 and 304A of the IPC rash or negligent driving is made punishable. Rashness means doing of an act unmindful of its consequence. Negligence means doing of an act which involves injury to life and property of others and which a reasonable and prudent man would avoid. Therefore even if it is assumed that the tractor was not driven at excessive speed as spoken by witnesses if its driving otherwise was rash or negligent and, petitioner is responsible. In this case evidence of P.W.2, witness to the accident would indicate that autorikshaw was coming from west CRL. R.P. No.1639 of 2009 -: 4 :- to east while tractor was going from east to west. In Ext.P3, mahazar for scene of occurrence which is not shown to be incorrect, lie of the road is stated as east-west. Tar portion has width of 5.75 metres. Accident spot is ½ metres south of northern tar end. Accident spot stated in Ext.P3 is the extreme wrong side of tractor and proper side of autorikshaw. Thus, it is in evidence that accident has occurred on the wrong side of the tractor driven by petitioner. There is no case that at the relevant time there was any other vehicle on the road or there was any circumstance which made it necessary for petitioner to take the tractor to its extreme wrong side. It is seen from the evidence of P.W.11 that the entire front portion of the autorikshaw was heavily damaged which according to P.W.11 indicate that there was a head on collision. It is clear that petitioner was driving the tractor along his wrong side. That indicated rashness or negligence on the part of petitioner. In the normal course a reasonable and prudent man would not have taken the vehicle to his wrong side, in the absence of any other compelling circumstances. Therefore courts below are justified in holding that petitioner was driving the tractor rashly or negligently. 8. Learned magistrate sentenced petitioner to undergo simple CRL. R.P. No.1639 of 2009 -: 5 :- imprisonment for six months each under Secs.279 and 337 of the IPC while imposing simple imprisonment for one year under Sec.304A of the Act. Having regard to the facts and circumstances including the fact that evidence did not show that petitioner was driving the tractor at excessive speed I am inclined to think that simple imprisonment for a period of six months is sufficient under Sec.304A of the IPC. There is no reason to interfere with the sentence awarded under Secs.279 and 337 of the IPC. Resultantly, this revision petition is allowed in part to the extent that sentence imposed on petitioner for the offence punishable under Sec.304A of the IPC is modified as simple imprisonment for six months. In other respects revision petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv