Abdul Razak @ Razak v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934** **Crl.Rev.Pet.No. 1092 of 2001 ( )** **-------------------------------CRA.227/1998 of D.C. & SESSIONS COURT,KOZHIKODE CC.735/1995 of J.M.F.C.-V,KOZHIKODE** **REVISION PETITIONER(S): ----------------------** **ABDUL RAZAK @ RAZAK S/O. MUHAMMED KOYA MOOTHODATH PARAMBA KADAMPUZHA, FEROKE COLLEGE, CALICUT** **BY ADV. SRI.P.V.KUNHIKRISHNAN** **COMPLAINANT(S): ---------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31** **BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ================== Crl.R.P. No. 1092 of 2001** ## **========================= Dated this the 1[st] day of November, 2012** ## **ORDER** The petitioner was concurrently found guilty, convicted and sentenced for the offences under sections 279 and 304-A of IPC and he was sentenced to undergo simple imprisonment for three months under section 279 of IPC and simple imprisonment for one year under section 304-A of IPC. The case of the prosecution can be stated thus: 2. The petitioner was the driver of the lorry. The lorry was proceeding from east to west; that is, from Ramanattukara to Feroke side. The girl who sustained injury and later succumbed was standing on the southern side of the road. The road at that place was having a width of 8.45 metres. It is alleged that the accused drove the lorry in a rash and negligent manner endangering human life and hit the girl who was standing on the Crl.R.P.No.1092/2001 : 2 : southern side. Immediately the girl was taken to the hospital. From there, the girl succumbed to the injuries. The FI statement was marked as Ext.P1. After conducting investigation, charge sheet was laid. 3. PW 1 to PW12 were examined and Exts.P1 to P10 were marked. PW1 though stated before court that Ext.P1 F.I. statement was signed by him, he denied to have seen the incident. PW2, the eye witness to the occurrence stated that he had seen the lorry, being driven by the petitioner, hitting the girl and causing fatal injuries. The fact that the girl died due to the injuries sustained in the accident was not disputed. The courts below placed reliance on the evidence given by PW2 to hold the prosecution case true. It was pointed out that the prosecution or the defence had no case that there was any other vehicle on the road or that there was any other obstruction or anything of that sort to affect the vision of the accused. Crl.R.P.No.1092/2001 : 3 : 4. According to the prosecution, there is nothing on record to show that the accused had attempted to avert the accident. Speed alone may not be the criterion but the crucial aspect is whether the driver of the lorry had taken reasonable care and diligence to avoid the accident. According to the prosecution, PW2 is the most natural eye witness who was running a provision shop near the scene of occurrence. His evidence is that he happened to see the incident while he was coming to his shop. Therefore, it cannot be said that it was not possible for PW2 to witness the incident. The contention that the father of the child was a close friend or associate of the accused and so the evidence given by PW2 should not have been accepted, is devoid of any merit. 5. Though PW1, an eye witness to the occurrence, did not fully support the prosecution and was permitted to be cross examined by the learned public prosecutor, the evidence given by him, which was not challenged by Crl.R.P.No.1092/2001 : 4 : the defence, is to the effect that the child was standing on the southern side of the road. It was then the lorry came and hit the child. There was no case when PW1 was examined that the child suddenly crossed the road or attempted to cross the road. PW2 also deposed that he saw the lorry, being driven by the accused, coming from the eastern side and hitting the child who was standing on the southern side of the road. True, a suggestion was put to PW2 that the accident occurred when the child ran to cross the road, but PW1 has stated that he did not see the child running. No other question was put to PW1 regarding the same. In other words, the evidence that PW2 also saw the child standing on the souther side of the road and then the lorry, which came from the eastern side, hit the child remained unshattered. 6. Sri. P.V. Kunhikrishnan, the learned counsel appearing for the revision petitioner, vehemently argued that no evidence was adduced as to how the child (victim) Crl.R.P.No.1092/2001 : 5 : happened to be on the road without the parents or any other near relatives of that child. But that will not in any way affect the case of the prosecution since the fact remains that the child, who was standing on the southern side of the road, was hit by the lorry and due to the injuries sustained the child died. The road at that place was having a width of 8.45mtrs with a road margin of both sides. The road was straight. As said earlier, there was no other vehicle on the road so as to affect the vision of the driver of the vehicle. 7. The evidence given by PW2, the entries in the GVR and other documents were relied upon by the courts below to hold that it was the petitioner who drove the lorry at the relevant time. The finding on that point has not been assailed by the learned counsel. 8. The learned counsel has relied upon the decision in **Damodaran v. State of Kerala** (1968 KLT 202) to fortify his submission that rashness does not Crl.R.P.No.1092/2001 : 6 : depend on speed alone. The condition of road and the amount of traffic at the time or which might reasonably be expected to be on the road, are the factors to be taken into consideration. Here, there was no difficulty for the accused to see the child standing on the southern side of the road. There was no difficulty for him to swerve or take the vehicle along the middle portion of the road leaving that much space on the southern side of the road. The fact that the incident happened on the tarred road and so, no negligence can be attributed is to tenuous to be countenanced. The decision of Supreme Court in **Prabhakaran v. State of Kerala** (2007(3) KLT 400(SC)) does not help the petitioner. In this case since the negligence attributed against the petitioner stands established by the unimpeachable evidence given by PW2 which was to a great extent supported by PW1. Hence, the courts below have analysed the evidence in the correct perspective. The finding of guilt entered by the Crl.R.P.No.1092/2001 : 7 : courts below does not suffer from any infirmity. The conviction is thus confirmed. 9. The learned counsel for the petitioner submits that the substantive sentence awarded for the offence under Sec. 304-A of IPC may be reduced taking note of the fact that the incident took place several years back. The delay in the disposal of the case by itself is not a reason to show leniency. In the light of the decisions of the Supreme Court in **Dalbir Sing v. State of Hariyana** (2000(5) SCC 82) and **State of Punjab v. Balwinder Singh** (2012 (2) SCC 182), the request for showing leniency in the matter of substantive sentence cannot be accepted. However, considering all the aspects, I find that the substantive sentence awarded for the offence punishable under Sec.304-A of IPC can be reduced. In the result, this criminal revision petition is disposed of as stated below: The conviction is confirmed. While confirming the Crl.R.P.No.1092/2001 : 8 : sentence awarded for the offence under Sec.279 of IPC the substantive sentence awarded for the offence under Sec.304-A of IPC is reduced to S.I for six months. The learned Magistrate will take steps to execute the sentence immediately. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge