IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 4222 of 2008() ------------------------------ CRA.625/2006 of SESSIONS COURT, PALAKKAD CC.250/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- KAMALADASAN, ALIAS RADHAKRISHNAN, S/O.VISWANATHAN, VALIYAKALLIYAMPARA, PARISAKKAL, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT/ RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.DILIP FOR R2-4 PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.4222 of 2008 --------------------------------------- Dated this 28th day of July 2009 ORDER Courts below concurrently found that petitioner was riding the scooter on the relevant day, time and place rashly and negligently so as to endanger human life, caused that vehicle hit the deceased who was walking along the side of the road and thereby committed offence punishable under sections 279 and 304(A) of the Penal Code (for short, “the Code”). Petitioner was sentenced to undergo simple imprisonment for six months under section 279 and imprisonment of similar description for one year under section 304(A) of the Code. His appeal was dismissed by learned Sessions Judge. Hence this revision. 2. Accident occurred on 13-06-2004 at about 8 p.m. Case was registered on the information given by PW1 who witnessed the incident. According to PWs.1 and 2, deceased was walking along the southern side of the road from east to west, followed by themselves. At that time the scooter which petitioner was riding came from east to west, passed by PWs.1 and 2, proceeded towards further west and hit the deceased. The latter fell down and sustained injuries. He was removed to the hospital where he was declared dead. Exts.P3 and P5 are the inquest report and certificate of post mortem examination. Though learned counsel has a contention that Ext.P5 is not proved by examining the medical officer concerned, I find that the document was Crl.R.P.No.4222 of 2008 2 marked under section 294 of the Code of Criminal Procedure which meant that genuineness of that document was not disputed by petitioner. 3. That, the deceased sustained injury in the accident and succumbed to it are not disputed. Evidence of PW6 Motor Vehicles Inspector along with Ext.P4 shows that accident was not due to mechanical defect of the vehicles. PWs.1 and 2 in their evidence identified petitioner as rider of scooter. They stated that the accident occurred due to the rashness and negligence of petitioner. Ext.P2 is the mahazar for scene of occurrence prepared by PW7 and attested by PW3. Though PW7 said that place of occurrence is on the northern side of the road, in re-examination he corrected it and said in accordance with the description in Ext.P2 that accident occurred on the southern side of road. Ext.P2 shows that tar portion of the road has width of seven metres at the place of accident and that accident spot is one metre north of southern tar end. The road is straight towards east upto 125 metres and towards west upto 150 metres. The scooter was seen 21/2 metre south of the accident spot. From the above evidence court below found that accident was due to rashness or negligence of petitioner. 4. PWs1 and 2 have not stated that petitioner was riding the scooter at excessive speed and, there is no possibility of that also since Crl.R.P.No.4222 of 2008 3 Ext.P2 does not show any tyre mark on the road and the scooter was seen 21/2 metres south of the accident spot. But mere absence of speed is not indicative of care and caution. Speed by itself is also not a criterion to decide rashness and negligence. In this case even if it is assumed as suggested by petitioner that deceased had crossed the road from north to south it is seen that he had almost covered the entire width of the road as disclosed by the fact that accident occurred one metre south of the northern tar end. Road is sufficiently straight towards either side. If petitioner had exercised proper care and caution required from a reasonable and prudent man, he could have avoided the scooter hitting the deceased. Evidence revealed that scooter hit the deceased from behind. Hitting from behind is prima facie evidence of negligence. On the materials on record I do not find reason to interfere with conviction of petitioner under sections 279 and 304(A) of the Code. 4. It is submitted by learned counsel that petitioner has already settled the matter with the legal representatives of the deceased. The legal representatives of the deceased have filed an affidavit stating that they have received Rs.50,000/- from petitioner as compensation and that pursuant to that agreement they are withdrawing the case in Motor Vehicle Accident Claims Tribunal seeking compensation from petitioner. Legal representative have Crl.R.P.No.4222 of 2008 4 stated that they have no objection in the proceeding against the petitioner being quashed. Learned counsel has relied on the decision of the Supreme Court in Puttaswamy V. State of Karnataka (2009 (1) KLT SN 8 (C.No.8)) where it is stated that even in matters involving motor accidents under Sec.304A of the Code, court should take note of settlement between parties while considering the sentence. The parties have settled the matter and compensation has been paid to the legal representative of the deceased. I found from the evidence of PWs.1 and 2 that this is not a case of the scooter being driven at excessive speed and hitting the deceased. Though contributory negligence is not a defence in a prosecution for rash and negligent driving, I also bear in mind that accident occurred one metre north of southern tar end and that petitioner was coming along his proper side. Considering these circumstances and taking into account the settlement reached between petitioner and the legal representative of the deceased I am satisfied that fine of Rs.1000/- under Sec.279 and Rs.5000/- under sec.304(A) of the Code is sufficient in the ends of justice. Resultantly this revision is allowed in part to the following extent: 1. Sentence awarded for the offence under Sec.279 of IPC is modified as fine of Rs.1000/- (Rupees One Thousand Only) and in default of payment to undergo simple imprisonment for one month. Crl.R.P.No.4222 of 2008 5 2. Sentence awarded for the offence under Sec.304A of IPC is modified as fine of Rs.5000/- (Rupees Five Thousand Only) and in default of payment to undergo simple imprisonment for two months. 3. Petitioner is granted time till 28-09-2009 to deposit fine in the trial court. In case of default petitioner shall appear in the trial court on 30-09-2009 to receive the default sentence. THOMAS P JOSEPH, JUDGE Sbna/