IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 470 of 2002() ----------------------------- CRA.171/1997 of ADDL.SESSIONS COURT, KOTTAYAM ST.3827/1996 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT.ACCUSED,. ---------------------------------------- JAMES S/O.JOSEPH, ARANGATHU VEEDU, ARUMANNOOR KARA AYARKUNNAM VILLAGE. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): COMPLAINANT. --------------------------- 1. STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, PAMPADY. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON 21/05/2009 PASSED THE FOLLOWING: S.S.Satheesachandran, J ---------------------- Crl.R.P.No.470 of 2002 ------------------------------- Dated this the 21st day of May 2009 O R D E R The challenge in the revision is against the concurrent verdict of guilty rendered against the petitioner for the offences under Sections 279,337 and 338 I.P.C. He was prosecuted for the aforesaid offences on the basis of a report filed by the Sub Inspector of Police, Pambadi. He had pleaded not guilty. The learned Magistrate, after trial, found him guilty of all the offences imputed and convicted him thereunder. He was sentenced to undergo simple imprisonment for thirty days for the offence under Section 338 I.P.C. No separate sentence was imposed for the offences under Sections 279 and 337 I.P.C. In appeal, the learned Sessions Judge confirmed and upheld the conviction and also the sentence without any modification. Crl.R.P.No.470/2002 2 Questioning the legality, correctness and propriety of the conviction of sentence, the accused has preferred this revision. 2. The prosecution case in a nutshell is that on the evening of 23/12/1994 at about 5.15 p.m, the accused rode a motorcycle bearing Reg.No.KEK 5014 rashly, negligently and at enormous speed through a public road, namely, Oravackal- Koorali road, from east to west, and hit against a scooter bearing Reg.No.KL 5-B 232 coming from the opposite direction and ridden by PW1 with PW4 in the pillion seat, causing severe injuries to both of them. Over the occurrence, recording the statement of PW1, the rider of the scooter, a crime was registered for the offences punishable under Sections 279 and 337 I.P.C. Investigation over the crime disclosed that PW1 had suffered a fracture to his right ring finger. After completing the Crl.R.P.No.470/2002 3 invesstigation, charge was laid against the accused indicting him for the offences punishable under Sections 279,337 and 338 I.P.C. 3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known to him. Prosecution examined PW1 to PW9 and got marked Exts.P1 to P8 to prove his case. When questioned under Section 313 Cr.P.C, maintaining his innocence, the petitioner contended that he had kept his correct side while riding the bike. He also examined one witness, pillion rider of his bike, as DW1 in support of his defence. The learned Magistrate, after appreciating the materials produced, found him guilty of the offences charged and he was convicted and sentenced as indicated earlier, which were confirmed by the Sessions Judge in appeal. Crl.R.P.No.470/2002 4 4. I heard the learned counsel for the revision petitioner as also the learned Public Prosecutor. 5. The concurrent verdict of guilty rendered against the accused by the courts below for the offence imputed is assailed by his counsel contending that the material circumstances in the case have not been appreciated in the proper perspective by the two inferior courts and it has resulted in miscarriage of justice. PWs 1 and 4, the rider and pillion rider of the scooter involved in the occurrence were highly interested and PWs 2 and 3 were chance witnesses, whose testimonies were not properly evaluated by the courts below is the submission of the counsel. The accused was held culpable mainly on the basis of the features evidenced by Ext.P6 mahazer prepared over the scene of crime which, both the courts failed to note, Crl.R.P.No.470/2002 5 according to the counsel, was prepared two days after the occurrence. In Ext.P6 mahazer the spot occurrence is identified close to the northern tar end of the road lying in east-west direction was taken as decisive by both the courts to conclude that the accused, by his rash and negligent driving, kept the wrong side of the road and dashed against the scooter coming from the opposite direction. The mahazer was prepared after two days of the occurrence and there was no evidence to indicate that the spot of occurrence was shown as identified through any ocular witness. According to the counsel, Ext.P6 should have been ignored from consideration. The evidence of DW1, pillion rider of the bike ridden by the accused that the scooter rider was at fault for the occurrence remained unimpeached in cross-examination, but, that was not taken note of and considered by both Crl.R.P.No.470/2002 6 the courts, is another grievance canvassed by the learned counsel to assail the conviction. Lastly the learned counsel urged, in the alternative, that, in the event of the conviction found sustainable, for any reason whatsoever, sentence imposed against the accused may be modified to one of fine, substituting the imprisonment imposed by the trial Magistrate and confirmed by the Sessions Judge. 6. I have perused the records of the case with reference to the submissions made by the counsel. Needless to point out that in exercise of revisional jurisdiction a finding a fact rendered by the inferior court is not liable to be interfered with by a review of the evidence, except in cases where it is shown the finding is so perverse and could not have been formed on the materials produced. Even assuming for argument sake Crl.R.P.No.470/2002 7 that Ext.P6 mahazar which was proved through the evidence of PW6, the head constable who prepared the document and also PW9 the attester could not have been acted upon for the reason that there was delay of two days after the occurrence in its preparation I find that circumstance will not, in any way, affect the merit of the prosecution case which is otherwise established by the evidence given by PWs 1 and 4, the rider and pillion rider of the scooter, both injured, in the occurrence and also PWs 2 and 3 who witnessed the occurrence. Attack against the evidence of PWs 2 and 3, on the premise that they were chance witnesses deserve to be taken note of only for its rejection. Nothing has been brought out in the cross-examination of PWs 2 and 3 to show that they were perjuring against the accused in respect of an occurrence which they had not witnessed. The accused has no Crl.R.P.No.470/2002 8 case nor even any suggestion that these witnesses have any animosity or illwill to inculpate him for the offences imputed giving false evidence before a court. The learned Magistrate, who recorded their testimony, found their evidence reliable and convincing, and the Sessions Judge in appeal concurred with that view. No circumstance other than a suggestion that they are chance witnesses, which is found not worthy of consideration, has been shown why their evidence found reliable by both the courts should not have been based to prove the indictment levelled against the accused. The materials produced in the case clearly demonstrate that the conviction of the accused as founded by both the courts is fully supported by legal evidence and it deserves only to be confirmed. I do so. 7. As regards the sentence imposed, having Crl.R.P.No.470/2002 9 regard to the totality of the facts and circumstances involved, the nature of injuries suffered by PWs 1 and 4, the age of the accused which, at the time of occurrence is shown as 46 years, and that the prosecution against him had been continuing for the last more than 15 years, I am inclined to accept the plea of his counsel to have indulgence in the modification of the sentence altering the prison term imposed to one of fine. Sending him to prison 15 years after the occurrence and continuation of the prosecution for such a long period, after he had crossed the age of 60 years that too, for a period of one month, the punishment imposed by the trial Judge and confirmed by the Sessions Judge, no doubt, is likely to cause him severe hardship and likely to wreck his physical and mental health irreparably, which is not called for at this stage to meet the ends of justice. So Crl.R.P.No.470/2002 10 much so, the sentence imposed against the accused is modified directing him to pay a fine of Rs.1,000/- (Rupees one thousand only), in default of which he shall undergo simple imprisonment for one month 8. Except to the extent of modification of the sentence as indicated above, the appeal fails in all other respects and it is dismissed. (S.SATHEESACHANDRAN,JUDGE) jsr Crl.R.P.No.470/2002 11 S.S.SATHEESACHANDRAN,J Crl.R.P.No.470/2002 O R D E R 21st day of May 2009