IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 93 of 2001(B) ----------------------------- CRA.199/1996 of ADDL. SESSIONS COURT, THRISSUR ST.108/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- SAJEEVAN, S/O.RAMAN, AGED 34 YEARS, PUTHENKATTIL HOUSE, KOOLIMUTTAM DESOM, MATHILAKAM VILLAGE, KODUNGALLUR TALUK, TRICHUR DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.93 of 2001 ---------------------------------------- Dated this the 27th day of May 2009 O R D E R The petitioner in this revision petition challenges the concurrent verdict of guilty, conviction and sentence imposed on him in a prosecution for offences punishable under Section 279,337 and 338 I.P.C. A sentence of S.I for a period of three months with a direction that the sentences must run concurrently was imposed on him for the offences. 2. The crux of the allegations against the petitioner is that he drove a bus from north towards south along the Chettuva- Kodungalloor road and when he reached the scene of the crime, it proceeded to the western (wrong) side of the road and hit against a car which was parked there. The car driver PW1 suffered injuries including a fracture of the clavicle. The car was pushed back on account of the impact and PWs 2 and 3 who were waiting for bus in the nearby bus shelter suffered injuries when the car, after the impact, proceeded in the reverse direction and hit on them. The F.I.S was lodged by PW1, the injured car driver. Investigation was completed and final report was filed by PW13. Cognizance was taken by the learned Magistrate. Crl.R.P.No.93/2001 2 2. The petitioner denied the offences alleged against him. Thereupon, the prosecution examined PWs 1 to 13 and proved Exts.P1 to P10. PWs 1 to 3 are the injured persons. Ext.P1 is the F.I.S lodged by PW1. They all spoke about the accident; but did not identify the driver. PW3 was declared hostile. PW4 is an eye witness who supported the prosecution case, who identified the revision petitioner. PWs 6 and 11 are eye witnesses examined who are declared hostile and did not support the prosecution case in full. PWs 7 and 8 are the conductor and cleaner of the bus. Ext.P2 trip sheet and Ext.P3 mahazer for seizure of Ext.P2 were proved through them. They turned hostile to the prosecution. PW7 admitted his signature in the trip sheet which shows that the petitioner was the driver of the vehicle. He stated before court that the trip sheet was prepared at the police station. Ext.P4 is the scene mahazer attested by PW8. Exts.P5 to P7 wound certificates were issued by PW9 doctor after examining PWs 1 to 3. PW10 issued Exts.P8 and P9 inspection reports after examining the bus and car involved in the accident. both had damage on them to corroborate the version of the prosecution. PWs 12 and 13 are the police officials who had roles to play in the registration of the Crl.R.P.No.93/2001 3 crime, its investigation and filing of the final report. Ext.P10 is the F.I.R registered. 3. In the course of cross-examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the accused took up a defence of total denial. However, the accused appears to have taken a definite stand that the accident occurred on the day when there was a heavy rain. The car driver lost control and the car came and hit on the bus, it was urged. No defence evidence was adduced. The courts below concurrently came to the conclusion that the evidence of the prosecution witnesses satisfactorily establishes the fact that the petitioner was driving the vehicle and that the accident had occurred on account of his rashness and negligence. Accordingly, they proceeded to pass the impugned order. 4. The learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds. i) The courts below should have held that identity of the driver of the vehicle has not been established satisfactorily. Crl.R.P.No.93/2001 4 ii) At any rate, it must have been held that the accident had occurred on account of the rashness and negligence of the petitioner. iii) Sentence imposed is excessive. 5. The accident is proved satisfactorily. It is true that some of the witnesses have turned hostile and some of them have not been able to identify the petitioner as the driver of the vehicle. The evidence of PWs 1 to 6 and 11 clearly show that an accident had taken place and such accident took place when the bus which was coming from north towards south and must have kept to its eastern side of the road went and hit against the parked car on the western side of the road. The evidence of PW4 clearly shows that the petitioner was driving the vehicle at the relevant time. The trip sheet proved through PW7 the conductor, notwithstanding the valiant attempt made by PW7 to oblige the petitioner, clearly proves that the vehicle was driven by the petitioner at the relevant time. 6. The scene mahazer clearly shows that the road at the relevant scene had a width of 634 metres and the impact took place at a distance of about 4.42 metres to the west of the eastern kerb. This shows that the bus driven by the accused had Crl.R.P.No.93/2001 5 crossed the imaginary midline, had strayed it to the wrong side and had hit against the car. Negligence is very evident from the nature of the accident as also from the oral evidence of witnesses. I am, in these circumstances, satisfied that the courts below committed no error in accepting and acting upon the evidence of the prosecution witnesses to conclude that an accident had taken place, that the petitioner was driving the bus and the bus had gone and hit against a car of which PW1 was the driver and which was parked on the western side of the road. I do not, in these circumstances, find any merit in the challenge raised against the verdict of guilty and conviction. 7. The learned counsel for the petitioner then contends that, in any view of the matter, sentence imposed is grossly excessive. The accident had taken place in October 1994 and the petitioner has endured the trauma of this criminal prosecution for the past 1 ½ decades. Even if the petitioner's version that, the car on that rainy day had skidded and hit against the petitioner's vehicle, is not accepted in toto, it may be noted that there is a clear admission by witnesses that there was heavy rain on that day. The circumstances must broadly suggest that the skidding of the petitioner's vehicle to the western side Crl.R.P.No.93/2001 6 was on account of the rain on that day and unanticipated. The learned counsel points out that except PW1, no one has suffered any serious injury and the injury of PW1 is basically a fracture of the clavicle only. That must convey to the court an idea about the momentum of the impact and consequently the speed with which the petitioner's vehicle was being driven. 8. I take note of all the circumstances including the passage of time as also the fact that it was a rainy day. Taking all the relevant circumstances into account, I am satisfied that the challenge on the question of sentence can be accepted and a modified reduced sentence can be imposed. I am satisfied, in the facts and circumstances of this case, that imposition of the maximum permissible sentence of fine shall meet the ends of justice. The appeal succeeds only to the above extent. 9. In the result, a) This Crl.R.P is allowed in part. b) The verdict of guilty and conviction of the petitioner under Section 279,337 and 338 are upheld. c) But in supersession of the sentence imposed on the petitioner under Section 279,337 and 338 I.P.C, he is sentenced to pay a fine of Rs.1,000/-, Rs.500/- and Rs.1,000/- respectively Crl.R.P.No.93/2001 7 for the said offences. In default of payment of fine, the petitioner shall undergo S.I for a period of one month each. 10. The petitioner shall have time till 29/6/2009 to pay the fine. The default sentence shall not be executed till that date. The petitioner shall appear and his executives shall produce him before the learned Magistrate on 29/07/2009 if the fine amount is not paid by then. (R.BASANT, JUDGE) jsr Crl.R.P.No.93/2001 8 R.BASANT, J Crl.R.P.No.93 of 2001 ORDER 27th DAY OF MAY 2009