IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 Crl.Rev.Pet.No. 862 of 2001(C) ------------------------------------------- CRL.A.NO.54/2000 OF ADDL. SESSIONS COURT, ALAPPUZHA, CC.NO.959/1996 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA. .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: --------------------------------------------------------------------- ABDUL KALAM, S/O. SAIDU MUHAMMAD, AGED 50, THEKKEVELIYIL HOUSE, WARD NO.6, PATTANAKKAD PANCHAYAT, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADVS. MR.K.KARTHIKEYA PANICKER, SMT.DAYA K. PANICKER, MR.B.RAJEEV KOYICKAL. RESPONDENT/ RESPONDENT/ COMPLAINANT: -------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PATTANAKKAD IN CRIME NO. 115/1995, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 862/2001-C: ORDER ON CRL.M.P. NO. 3987/2001 IN CRL.R.P. NO. 862/2001 DISMISSED 15/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 862 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 15th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.959 of 1996 of the Judicial Magistrate of the First Class-I, Cherthala and the appellant in Crl.A.No.54 of 2000 of the Addl. Sessions Court, Alappuzha. He was convicted under sections 279 and 337 IPC and section 3(1) read with section 181 of the Motor Vehicles Act and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month for the offence punishable under section 279 IPC, simple imprisonment for a period of one month and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a period of 15 days for the offence punishable under section 337 IPC and simple imprisonment for a period of one month and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a period of 15 days for the offence punishable under section 3(1) read with section 181 of the Motor Vehicles Act. The substantive sentences were ordered to be run concurrently. On appeal, the appellate court confirmed the conviction and sentence under sections 279 and 337 IPC and set aside the conviction and sentence under section 3(1) read with section 181 of the Crl.R.P.862/01 2 Motor Vehicles Act. The accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in the evidence before the trial court, was that on December 5, 1995 at about 5 P.M. the accused drove his scooter, without valid licence, bearing registration No. KEK 4633 in a rash and negligent manner along the Alappuzha-Ernakulam National Highway from north to south with PW2 as a pillion rider and that when he reached on the southern side of Pattanakkad High School, dashed against a bicycle of PW1, as a result of which PW1 fell down and sustained injuries and that therefore, the accused has committed the offences punishable under sections 279 and 337 IPC and section 3(1) read with section 181 of the Motor Vehicles Act. 3.The accused on appearance before the trial court, pleaded not guilty to the charge under sections 279, 337 IPC and 3(1) read with section 181 of the Motor Vehicles Act. PWs.1 to 10 were examined and Exts.P1 to P7 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused pleaded innocence. No defence evidence was adduced. The trial court on an appreciation of the evidence, found the revision petitioner guilty of the offences punishable under sections 279 and 337 IPC and section 3(1) read with section 181 of the Motor Vehicles Act, convicted him thereunder and sentenced him as aforesaid. On appeal, the lower Crl.R.P.862/01 3 appellate court confirmed his conviction and sentence under sections 279 and 337 IPC and set aside the conviction and sentence under section 3(1) read with section 181 of the Motor Vehicles Act. 4. The learned counsel for the revision petitioner argued that the prosecution has failed to establish the identity of the accused and the vehicle involved in the accident and that there is a delay in registering the F.I.R. and therefore the accused is entitled for an acquittal. 5. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under sections 279 and 337 IPC by the trial court, which was confirmed by the lower appellate court can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh ? 6. On the side of the prosecution, PWs.1 to 10 were examined and Exts.P1 to P7 were marked before the trial court. PW1 is the de facto complainant who sustained injuries in the alleged accident. He testified in terms of the case of the prosecution. His evidence was challenged mainly on the ground that PW1 deposed that the number of scooter hit him was KEK 4634, but the actual number of the scooter is KEK 4633 and that therefore, his evidence cannot be believed. There is no substance in the above contention. PW1 testified that the accused and the pillion rider of the scooter took him to the hospital. Further, the offending vehicle was Crl.R.P.862/01 4 recovered from the scene of occurrence, the number of which is KEK 4633. Hence, it is proved that the actual registration number of offending vehicle is KEK 4633. That being so, the trial court as well as the appellate court is perfectly justified in believing the evidence of PW1 regarding the identity of the accused and the vehicle involved in the accident. 7. PW2 is the pillion rider of the scooter and PWs.3 and 4 are the independent occurrence witnesses. They turned hostile to the prosecution. PW5 is the owner of the scooter and he obtained the interim custody of the scooter from the police station. PW6 is the person who attested the scene mahazar. PW7 is the Motor Vehicle Inspector who inspected the scooter and prepared Ext.P4 report. PW8 is the Asst. Sub Inspector who conducted the investigation. PW9 is the then Sub Inspector of Police who laid the charge. 8. From the evidence discussed above, I am of the view that the trial court as well as the appellate court is perfectly justified in believing the evidence of PW1 and coming to the conclusion that the accused was the driver of the offending scooter at the time of the accident, that the accident occurred due to the negligent riding of the scooter by the accused and as a result, PW1 sustained injuries. It is clear from the evidence of PW1 and Ext.P3 scene mahazar that the accident occurred on the western side of the National Highway, which is wrong side of the scooter. No mechanical defect was noted to the scooter. Therefore, the finding of the trial court, Crl.R.P.862/01 5 which is confirmed in appeal that the accident occurred due to the rash and negligent driving of the offending scooter by the accused is sustainable. Consequently, I uphold the conviction of the trial court under sections 279 and 337 IPC which is confirmed in appeal. 9. As regards the sentence, the trial court has sentenced the revision petitioner/accused to undergo simple imprisonment for three months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month for the offence punishable under section 279 IPC, simple imprisonment for a period of one month and to pay fine of Rs.500/-, in default to undergo simple imprisonment for 15 days under section 337 IPC and simple imprisonment for one month and to pay fine of Rs.500/-, in default to undergo simple imprisonment for 15 days under section 3(1) read with section 181 of the Motor Vehicles Act. The appellate court confirmed the conviction and sentence under sections 279 and 337 IPC and set aside the conviction and sentence under section 3(1) read with section 181 of the Motor Vehicles Act. The incident occurred on December 5, 1995, about 14 years ago. The accused is now aged 53. Taking into consideration all these facts, I feel that a sentence of fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 279 IPC and fine of Rs.500/-, in default to undergo simple imprisonment for 15 days under section 337 IPC would meet the ends of justice. There is another aspect that Crl.R.P.862/01 6 PW1 sustained injuries in the accident. Therefore, I feel that it would be proper to direct the revision petitioner to pay a compensation of Rs.5000/- to PW1 as provided under section 357(3) of the Code of Criminal procedure. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sections 279 and 337 IPC rendered by the trial court, which is confirmed in appeal by the lower appellate court is upheld. The sentence is modified to the effect that the revision petitioner is sentenced to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 279 IPC and to pay fine of Rs.500/-, in default to undergo simple imprisonment for 15 days under section 337 IPC. The revision petitioner is directed to pay compensation of Rs.5,000/- to PW1, as provided under section 357(3) of the Code of Criminal procedure, in default to undergo simple imprisonment for one month. One month's time is granted to pay the fine amount and compensation. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn Crl.R.P.862/01 7 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 862 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 15th day of October, 2009