IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 408 of 2002 -------------------------------------------- CRA.194/1999 of ADDL. SESSIONS COURT(FT NO.II), PALAKKAD CC.565/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: K.G.JAYARAJAN, S/O.GOPINATHAN NAIR, KALAPPURAKKAL, PULIYANUR, PALA, KOTTAYAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SMT.RESMI G. NAIR RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL ERNAKULAM(CIRCLE INSPECTOR OFPOLICE, ALATHUR). PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2759/2002 IN CRL.R.P.NO.408/2002 CLOSED 25.5.2009 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ K.P. Balachandran, J. -------------------------- Crl.R.P.No.408 of 2002 -------------------------- ORDER Petitioner is the accused in C.C.No.567/97 on the file of the Judicial First Class Magistrate's Court, Alathur. He was tried for offences under Sections 279, 338 and 304(A) IPC on the allegation that at about 3.10 p.m. on 13.4.1997, he drove lorry bearing Reg.No.KL-7/K 8836 in a rash and negligent manner so as to endanger human life along the National Highway and caused it to hit at the rear side of the motor cycle bearing Reg.No.TN-38/B 1774 near Vettakkorumakan Temple at Erimayur and caused death of one Muralidas, who was riding the motor cycle and caused grievous injuries to CW2, who was the pillion rider thereof. After trial and considering the evidence adduced in the case, the learned Magistrate found the petitioner guilty of the offences punishable under Sections 279, 338 and 304(A) IPC, convicted him thereunder and sentenced CRRP 408/02 2 him to undergo rigorous imprisonment for a term of two years each under Sections 338 and 304(A) IPC and rigorous imprisonment for a period of six months under Section 279 IPC with benefit of concurrency and right of set off. His driving licence was also suspended for a period of two years under Section 20 of the Motor Vehicles Act. The conviction and sentence was upheld by the Sessions Judge, Palakkad vide judgment in Crl.A.No. 194/99 and hence this revision. 2. It is vehemently contended before me by the learned counsel for the petitioner that there is absolutely no evidence either to establish rashness or negligence on the part of the petitioner from the evidence of PWs 1 to 3 and 7, who alone were examined as occurrence witnesses by the prosecution and that therefore, the concurrent verdicts of guilt entered into by the courts below deserve to be set aside and the petitioner acquitted. It is his further contention that if all this Court CRRP 408/02 3 concurs with the findings of the courts below, the sentence awarded to the petitioner be reduced, as the courts below have awarded the maximum period of imprisonment to the petitioner, which, according to him, is not justified in the circumstances of the case. 3. Learned counsel for the petitioner has taken me through the entire evidence in the case and in detail through the evidence of PWs 1 to 3 and 7. As rightly urged by the counsel for the petitioner, evidence of PW7 is not of much use to the prosecution as he has stated that he is not aware as to how the occurrence took place and on hearing the sound of hitting, when he came over to the scene of occurrence, he saw that the accident has taken place. But, all the same, that is not the case with the evidence tendered by PWs 1 to 3. 4. The evidence of PW1, who is a Beedimaker, who has witnessed overtaking of the motor cycle by the lorry involved in the accident, is that the CRRP 408/02 4 motor cycle, which was being ridden along the highway, was being overtaken by the lorry and in that process it caused the motor cycle to capsize and was drawn to some extent by the lorry and that out of the two persons, who were travelling on the motor cycle, one breathed his last and the other sustained fracture of his leg. According to him, he has seen that the motor cycle got entangled beneath the lorry while the lorry was overtaking the motor cycle. He has also stated that the lorry was being driven almost at a high speed. According to the learned counsel for the petitioner, PW1 has stated in cross-examination that he has not seen the actual hitting of the motor cycle by the lorry, but has seen only the motor cycle getting into the portion beneath the lorry and that he does not know the reason for so happening. It is worthy to note that PW1 has also stated that in the process of the lorry overtaking the motor cycle, the lorry was in between the motor cycle and the place where he was CRRP 408/02 5 sitting and obviously, therefore, he could see only as to what is happening beneath the lorry and not what has happened on the left side of the lorry while the lorry was overtaking the motor cycle. 5. PW2, the pillion rider, has deposed that the lorry hit against the motor cycle from behind; that the hit was on the right side almost close to his leg and that he did feel that the riders were being drawn to some length along the road by the lorry. It is true that he has stated as he cannot say as to what was the speed of the lorry except that it was having more speed than the motor cycle, when only it could overtake the motor cycle. He has also deposed that before reaching the scene of occurrence, there was a board displayed on the National Highway indicating that it is an accident prone area. When an accident takes place and injury is caused to the rider or the pillion rider, the injured will not be able to say exactly as to how the accident has taken place and in what CRRP 408/02 6 manner, except to the extent spoken to by PW2. 6. PW3, who is also a Beedimaker, has deposed that the lorry, which was coming from Palakkad, was overtaking the motor cycle, which he witnessed at a distance of five metres and thereafter what he saw was that the motor cycle and two persons had fallen down and struggling for life, being injured and that the lorry was driven away. He has also stated that he has stated to the police that lorry was coming at an over speed and hitting on the motor cycle, though he further stated that he cannot say whether it was over speed or not. PW3 is not cross-examined at all by the defence. 7. The ingredients which constitute an offence under Section 279 IPC is rashness and negligence and not the speed at which the vehicle is driven. Even a vehicle, which is being driven at a very slow speed, say 10 kms. or 15 kms. per hour, can be driven in such a manner with utmost carelessness, unmindful of the consequences and may endanger the CRRP 408/02 7 life and property of others and that also is rashness and negligence. In the circumstances of the case stated above, I concur with the findings of the courts below as regards the negligence aspect. The accused, though stated in his examination under Section 313 Cr.P.C. that the motor cycle was falling into a gutter and was hitting against the back side of the lorry, he has not made any attempt to establish that aspect and no question even was put to the occurrence witnesses suggesting that there was any gutter on the road at the scene of occurrence. There is absolutely no incorrectness, illegality or impropriety in the findings entered into by the learned Magistrate, which was confirmed also in appeal by the Sessions Judge. There is no dispute that grievous injuries were caused to PW2 and that death is caused to the rider of the motor cycle. Hence, the petitioner has committed offences punishable under Sections 279, 338 and 304(A) IPC. CRRP 408/02 8 8. The argument advanced by the learned counsel for the petitioner that the courts below should not have imposed the maximum punishment of two years imprisonment, though with benefit of concurrency, deserves consideration. It is only in the fitness of things that the term of imprisonment for offences under Sections 338 and 304(A) IPC is reduced to a term of one year each with benefit of concurrency. No other alteration requires to be made in the sentence awarded by the learned Magistrate, which was confirmed in appeal. In the result, this revision is allowed to the above extent of reducing the term of imprisonment from two years to one year for offences under Sections 338 and 304(A) IPC. In all other respects this revision is dismissed. 23rd May, 2009 (K.P.Balachandran, Judge) tkv CRRP 408/02 9 K.P.Balachandran, J. -------------------------- Crl.R.P.No.408 of 2002 -------------------------- ORDER 23rd May, 2009