IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 113 of 2001() ----------------------------- CRA.3/1997 of ADDL.SESSIONS COURT, PARAVUR CC.1055/1994 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- MANILAL, S/O.NANU, MEEHERI VEEDU, MOOLAVATTOM KARA, KOTTAYAM DISTRICT. BY ADV. SRI.T.I.ABDUL SALAM SRI.P.CHANDY JOSEPH RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, PARAVUR. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.113 of 2001 -------------------------------------- Dated this the 25th day of September, 2008. ORDER On a charge of causing the death of a 19 year old boy due to his rash and negligent driving of the offending vehicle so as to endanger human life on 15.7.1994 at about 1.15 p.m., revision petitioner faced trial in the court of Judicial First Class Magistrate, Perumbavoor for offences punishable under Sections 279 and 304 A of the Indian Penal Code, was convicted and sentenced to undergo simple imprisonment for six months under Section 279 and one year under Section 304(A). The Criminal Appeal preferred by him was dismissed. The legality, regularity and correctness of the judgments of the courts below are under challenge in this revision. 2. Heard both sides. 3. The revision petitioner allegedly was driving a tempo van from north to south along the Perumbavoor-Muvattupuzha public road. In front of the shop of PW1, that van while allegedly attempting to overtake a K.S.R.T.C. Super Fast bus hit the deceased who was riding a cycle from south to north. PWs 1 and 3 gave evidence regarding the incident. PW3 claimed that he was engaged in making beedi on the varandha adjacent to the shop of PW1. PWs 1 and 3 stated that the van was driven by the revision petitioner at excessive speed and that in the attempt to overtake the Super Fast K.S.R.T.C. bus, it hit the cycle. Crl.R.P.No.113/2001 2 They claimed that the accident occurred towards the western side of the road. Though, the evidence of PWs 1 and 3 was challenged on behalf of the revision petitioner, I did not find any reason to disbelieve them. The courts below have concurrently found that their evidence is acceptable. 4. Ext.P3, the mahazar for the scene of occurrence prepared by PW9 shows that the accident occurred at a point 1.15 metres east of the western tar end, the width of the tarred portion is being 6.50 metres. Concededly, the van was coming from north to south. Ext.P3 is not under challenge. Thus, there is convincing evidence to show that the accident occurred on the wrong side of the van. In such a situation, the revision petitioner as the driver of the van was obliged to explain under what circumstances his vehicle went over to the wrong side. The place of occurrence shown in Ext.P3 corroborates the evidence of PWs 1 and 3 regarding the spot of the accident. It is not contended otherwise, and evidence of PW10 supported by Ext.P10 shows that the accident was not due to any mechanical defect of the offending vehicle. A further fact to be noted from Ext.P3 is that the road is straight towards south upto 200 metres from the place of the accident. In the circumstances, the concurrent finding of the courts below that the revision petitioner as the driver of the offending vehicle was rash and negligent, drove that vehicle in a manner in endangering human life and caused the death of the deceased requires no inference. 5. So far as the identity of the driver of the offending vehicle is concerned, PW3 has not clearly stated it but PW1 has identified the revision Crl.R.P.No.113/2001 3 petitioner as the driver of the offending vehicle. PW9 stated that on 19.7.1994 he arrested the revision petitioner who produced the GVR of the offending vehicle (Ext.P8) which he seized as per Ext.P7. In Ext.P8 also, the driver of the offending vehicle is shown as 'Manilal' who, it is not disputed before me is the revision petitioner. Thus, the evidence of PW1 regarding the identity of the driver gets corroboration from Ext.P8 also. The conviction of the revision petitioner in the circumstances cannot be assailed . 6. Learned counsel submitted that leniency may be shown to the revision petitioner in the matter of sentence. Learned counsel would say that the revision petitioner is a chronic diabetic patient undergoing intermittent hospitalisation and treatment. It is also submitted that the revision petitioner is aged 62 years and that on account of the illness he is intermittently vomitting blood. Learned counsel produced the relevant medical certificates from S.H. Medical Centre (Department of pulmonology). 7. I heard learned counsel for the revision petitioner and the learned Public Prosecutor on the question of modification of sentence. The certificate dated 23.9.2008 produced by the revision petitioner and issued from S.H. Medical Centre states that the revision petitioner is suffering from C.O.P.D., Post TB firbrosis of lungs and Diabetes Mellitus. It is certified that the revision petitioner was on anti T.B. medication from 13.12.2007 to 12.6.2008. Yet another document produced is the identity card from the Revised National Tuberculosis Programme which states about the treatment of the revision petitioner for pulmonary illness from 13.12.2007. The identity card states that he Crl.R.P.No.113/2001 4 was undergoing continuous treatment. The discharge summary issued from S.H. Medical Centre shows his admission in that hospital on 10.12.2007 and discharge on 17.12.2007. The history is stated as Haemoptysis on and off since 2-3 years associated with fever and anorexia since few weeks. He was treated with antibiotics and other medicines and on discharge was advised to continue treatment and review. 8. It is revealed that the the revision petitioner is a chronic diabetic and tuberculosis patient and treatment for that continues. Though, due to the rash and negligent act of the revision petitioner the life of a 19 year old boy was extricated, in the circumstances in which now the revision petitioner is placed I am inclined to think that leniency has to be shown to him in the matter of substantive sentence. If he is send behind bars it may cost his life even. He may not be able to continue proper treatment for his illness as being done now. In the circumstances, I am inclined to modify the sentence to simple imprisonment as till the rising of the court. 9. It may be true that the legal representatives of the deceased got some compensation from the Motor Accidents Claims Tribunal. Death cannot be compensated in terms of money. Revision petitioner cannot also take advantage of the insurance company paying compensation for his tortious act. He has to compensate the legal representatives of the deceased. The revision petitioner will pay Rs.30,000/- to the legal representatives of the deceased as compensation. In case he fails to do so, he has to undergo simple imprisonment for a period of three months. Crl.R.P.No.113/2001 5 Resultantly this Revision Petition is allowed in the following lines: (1) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. (2) The revision petitioner is directed to deposit in the trial court for payment to the legal representatives of the deceased Rs.30,000/- (Rupees Thirty thousand only) as compensation within three months from this day failing which, he shall undergo simple imprisonment for three months. (3 ) The revision petitioner shall surrender in the trial court on 30.12.2008 to receive the sentence. Bail bond shall stand discharged. Criminal Miscellaneous Petition No.481 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Thomas P.Joseph, J. Crl.R.P.No.113/2001 6 Crl.R.P.No.113 of 2001 ORDER 25th September, 2008