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. 368 of 2002 -------------------------------------------- CRA.153/1998 of III ADDL. SESSIONS COURT, KOLLAM CC.434/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ANDROOSE, S/O.BENNECHAN, KOOTTANIPURATHU VEEDU, MYLAKKADU, ADICHANALLOOR. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP 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.R.P.NO.2607/2002 IN CRL.R.P.NO.368/2002 DISMISSED 23.5.2009 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.P. Balachandran, J. -------------------------- Crl.R.P.No.368 of 2002 -------------------------- ORDER The accused, tried and convicted for offences under Sections 279, 337, 338 and 304(A) IPC vide judgment passed by the Judicial First Class Magistrate-I, Kollam in C.C.No.434/95 on the file of his court is the petitioner, the appeal filed by him as Crl.A.No.153/98 before the Sessions Court, Kollam also having been dismissed confirming the conviction and sentence passed by the learned Magistrate. On conviction, the petitioner is sentenced to undergo simple imprisonment for six months for offence under Section 304(A) IPC, to undergo simple imprisonment for three months for offence under Section 279 IPC, to undergo simple imprisonment for three months for offence under Section 337 IPC and to undergo simple imprisonment for six months for offence under Section 338 IPC with benefit of concurrency. CRRP 368/02 2 2. Petitioner was indicted for offences as aforesaid in Crime No.256/95 of Kottiyam Police Station on the allegation that at about 1 p.m. on 20.9.1995 he drove a Tempo Trax bearing Reg.No.KL- 2/C 3618 along the Kollam-Thiruvananthapuram National Highway from west to east and when it reached near the Kottiyam Junction, caused the said tempo trax to dash against a Maruti Car bearing Reg.No.KL-2/C 2203, driven by one Thajudeen along the said highway from east to west and caused the Maruti Car to be pushed towards the southern side of the road and hit against an Ambassador Car bearing Reg.No.KCT 3162, which was parked on the southern side of the road, resulting in death of Thajudeen, who was driving the Maruti car and grievous injuries being caused to PWs 1 and 2. 3. After trial, considering the evidence adduced by the prosecution, the learned Magistrate found the petitioner/accused guilty of the offences alleged as aforesaid, convicted him thereunder and CRRP 368/02 3 sentenced him as aforesaid and it was the said conviction and sentence that was upheld by the appellate court. 4. It is vehemently contended before me by the learned counsel for the petitioner that PWs 1 and 2 examined by the prosecution are only the two injured persons, who were attending to the repair work of their Ambassador car on the southern side of the road; that there was no reason for them to see the occurrence as they will be concentrating to the repairs that are taking place to their vehicle; that PW8 is a nearby shop keeper and he has not witnessed the occurrence as he had gone into his shop; that no other person from the locality is examined as a witness and that therefore, the conviction of the petitioner on the basis of the evidence tendered by PWs 1 and 2 alone is unwarranted and the petitioner/accused should have been acquitted by the courts below. He has a further case that as seen from the description at CRRP 368/02 4 Page 3 of the scene mahazar, the position of the tempo trax is that its front right wheel was 6.50 metres towards north from the scene of occurrence and therefore there was no chance for the tempo trax to hit against the Maruti car and cause the accident. 5. The last point urged by the counsel for the petitioner is unsound, as the tempo trax, obviously, after the accident, was removed to the northern side to clear the road for traffic. If it was otherwise, in cross-examination of PWs 1, 2 and 8, it would have been suggested that the tempo trax was on the northern side of the road and it could not have hit against the vehicle that was proceeding along the southern side of the road and cause the accident. No attempt was also made to make such a suggestion to the Investigating Officer. The unsound and illogical argument so advanced is repelled. CRRP 368/02 5 6. PW1 is one who has given Exhibit P1 F.I. Statement. He has stated that the NH road from Kollam to Thiruvananthapuram lies at the place of accident in east-west direction; that the occurrence has taken place on the southern side of the road; that he was waiting on the footpath on the southern side of the road parking his Ambassador Car bearing Reg.No.KCT 3162 on the southern side of the road at the untarred portion and was standing on the right side of the vehicle along with PW2; that at that time, a Maruti car came along the National Highway from east to west along the southern side of the road and a tempo trax bearing Reg.No.KL-2/C 3618, which was proceeding in the opposite direction, viz., from west to east at an over speed, came over to the wrong side, namely, the southern side and dashed against the Maruti car and pushed it and caused it to dash against his Ambassador car, which had been parked for repairs; that himself and PW2 were CRRP 368/02 6 smashed in between the two vehicles and his leg was smashed and there was fracture also to the leg of PW2; that there were other injuries as well, both to him and to PW2; that the Maruti car was damaged in full and the person, who was in the car was smashed in between the seat and the steering wheel; that all of them were taken to the hospital; that the person in the Maruti car was one Thajudeen and he breathed his last in the hospital and damage is caused also to his Ambassador car. He has stated that it is on account of the callous negligence and over speed with which the petitioner was driving the tempo trax that the accident has occurred. He further stated that apart from seeing the driver of the tempo trax on the date of occurrence, he has further identified him while in hospital, to the Circle Inspector of Police. In cross-examination it has been brought out that the car of PW1 was being parked on the southern side of the road facing towards west; that the right side tyres of CRRP 368/02 7 his car were not on the tarred portion of the road; that the person from the workshop was fitting the nozzle of the car keeping the bonnet of the car open and that he himself was standing on the front right side of his car, but on the portion of the road beyond south of the southern tar end of the road. It is also brought out in cross-examination that the Maruti car was proceeding towards west along the southern side of the road and that the tempo trax was proceeding from west to east and that was hitting against the front portion of the Maruti car. It is further brought out in cross- examination of PW1 that the tempo trax was hitting against the Maruti car at a point two metres to the front of his car, viz., towards west and that the scene of occurrence is about 100 metres from the Kottiyam Junction. PW1 has also stated in cross- examination to the specific question put by the defence Lawyer that the scene of occurrence is 8 metres towards south from the northern tar end and CRRP 368/02 8 that there are road margins on either side of the road, viz., on the north and south. 7. PW2 has given evidence corroborating the testimony of PW1. He was accompanying PW1 in his car when the car of PW1 was being brought over to the workshop for repairs. PW2 has stated also that in the Maruti car, involved in the accident, there was only the driver; that he got smashed in between the steering and the seat and he was taken out cutting open the Maruti car and that his name is Thajudeen. PW2 has also identified the petitioner as the driver of the tempo trax. According to him, Maruti car was proceeding towards west at a reduced speed and the tempo trax was proceeding towards east at an over speed and that the accident has taken place as the tempo trax driven by the petitioner came over to the wrong side. PW2 also identified the petitioner/accused as the driver of the tempo trax and has stated that he has also identified him when he was brought to the hospital CRRP 368/02 9 by the police inspector. Nothing helpful to the petitioner/accused was brought out in cross- examination of the PW2 as well. 8. PW8, the shop keeper of the shop close to the scene of occurrence, though disowned to have seen the occurrence taking place stating that he has gone into his shop and it was then that the accident has taken place outside his shop, has admitted, however, that there was a car in front of his shop which was parked on the southern side of the road; that there was no one within the said car; that the said car was an Ambassador car; that injuries were caused to the person who was coming in the Maruti car and that all vehicles were being found on the southern side of the road. In cross- examination, he has also stated that in front of Aiswarya Shop, there is space for repairing vehicles. 9. The evidence of PWs 1, 2 and 8 establish convincingly that the tempo trax, which was CRRP 368/02 10 proceeding towards east in an excessive speed, was coming over to the wrong side of the road, namely, the southern side of the road and hitting against the Maruti car driven by the deceased Thajudeen and that injuries both simple and grievous are caused to PWs 1 and 2 in the occurrence, as they got themselves smashed in between the Ambassador car which had been parked for repairs and the Maruti car, which was hit against by the tempo trax and pushed against the Ambassador car. The concurrent findings of the courts below that the petitioner is guilty of the offences punishable under Sections 279, 337, 338 and 304(A) IPC, in the circumstances, cannot be found fault with. The conviction of the petitioner for those offences is neither incorrect nor is it illegal or improper. 10. It is further contended by the counsel for the petitioner that the sentence of imprisonment awarded by the courts below is excessive. It is worthy to note that the petitioner is the driver of CRRP 368/02 11 a tempo trax and is a professional taxi driver, who has driven the vehicle in such a reckless manner giving scant regard to the life of others using the highway, but, still, the courts below awarded only simple imprisonment for six months for offence under Section 304(A) IPC, simple imprisonment for three months each under Sections 279 and 337 IPC and simple imprisonment for six months under Section 338 IPC and that too with benefit of concurrency. Any further reduction in the sentence would render the sentence flee bite and is, therefore, not liable to be reduced. In the result, this revision is devoid of merit and is dismissed. 23rd May, 2009 (K.P.Balachandran, Judge) tkv CRRP 368/02 12 K.P.Balachandran, J. -------------------------- Crl.R.P.No.368 of 2002 -------------------------- ORDER 21st May, 2009