A.M. Akber v. State of Kerala (Crl.R.P. No. 1182 of 2002)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1182 of 2002 ( ) -------------------------------CRA.231/1994 of SESSIONS COURT,MANJERI CC.382/1993 of J.F.C.M-I,PERINTHALMANNA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **A.M.AKBER, S/O. LATE JAMEESA, C/O. BAVA RAWTHER, KAYARANKODE HOUSE NECHIPPULLY MUNDOOR, PALAKKAD.** **BY ADVS.SRI.SAJAN VARGHEESE K. JEBY JACOB** **COMPLAINANT(S)/RESPONDENT/DEFACTO COMPLAINANT:** **----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 1182 of 2002** ## **========================= Dated this the 18[th] day of December, 2012** ## **ORDER** The petitioner was held guilty, convicted and sentenced for the offences punishable under Secs.279, 337 and 338 of IPC. He was sentenced to S.I for six months each for the offences under Sec.279 and 338 of IPC. Besides, a sum of Rs.1,000/- was directed to be paid as fine for the offence under Sec.338 of IPC. For the offence under Sec.337 of IPC, the petitioner was sentenced to pay a fine of Rs.500/-. The conviction and sentence passed against him was confirmed by the appellate court. 2. The incident took place on 13.07.1993 at about 8.00PM. The petitioner was the driver of the lorry bearing registration No.KR Z 7885. The road at the place of incident lies in north south direction. The lorry was Crl.R.P.No.1182/2002 : 2 : proceeding from south to north. Towards north, it was slightly down gradient. The jeep came from the opposite direction. The width of the tar road at that place is 6.98 mtrs. The place of accident is shown to be 1.52 mtrs to the west of the eastern edge of the tar road. It is alleged that the lorry was driven by the petitioner in a rash and negligent manner and thus it hit the jeep causing injuries to the passengers in the jeep. 3. PW1 to PW9 were examined and Exts.P1 to P12 were marked. 4. The learned Magistrate found that the lorry was driven by the petitioner at a terrific and uncontrollable speed and that it hit the jeep which was on the eastern side and thereafter, as the petitioner was not in a position to control the lorry, it went off the road on the western side and hit the compound wall on the north-west side. The evidence given by PW2 the driver of the jeep was supported by PWs 3, 4 and 9. Their evidence and the factors noted in the scene mahazar were relied upon by Crl.R.P.No.1182/2002 : 3 : the learned Magistrate to find the petitioner guilty of the offences as stated above. The appellate court, after reappraisal of the evidence, concurred with the conviction and sentence passed by the trial court. 5. Sri.Sajan Varghese, the learned counsel appearing for the petitioner has argued at length contending that if the jeep was driven at a very low speed and that the jeep was almost stopped on seeing the lorry coming from the opposite side then, when the jeep was hit by the lorry, it would have been pushed towards its left side; that is towards the eastern side, but as per the scene mahazar, the jeep was found on the tar road itself. Hence, according to the learned counsel, there is inconsistency in the evidence given by prosecution witnesses and the observations contained in the scene mahazar. The fact that some of the passengers sustained grievous hurt is not in dispute. It is pointed out by the prosecution that after the lorry hit the jeep, it went towards west, went off the road and hit the compound Crl.R.P.No.1182/2002 : 4 : wall. Much damage was caused to the lorry as it hit the compound wall. 6. Sri. Sajan Varghese would submit that since the road at that place, so far as the driver of the jeep is concerned, was up gradient, PW2 in all probability might have driven the jeep at high speed and that must have been the reason for the accident. It is further submitted that the spot of accident marked by the investigating officer cannot be the actual accident spot. According to the learned counsel, as the lorry was seen after the hit on the western side of the road, it cannot be said that the lorry was driven rashly or negligently. But the evidence on record would persuade the court to accept the theory that the lorry was proceeding along the eastern half of the road and when it suddenly saw the jeep coming in its front, the lorry driver tried to swerve the lorry, but by that time, the lorry happened to hit the jeep. It is also noticed that there is a slight curve towards the left. Because of the rashness, the lorry, after the hit, went off Crl.R.P.No.1182/2002 : 5 : the road and hit the compound wall. On going through the evidence, it can be seen that the negligence or rashness attributed against the petitioner is well corroborated by PWs 2, 3 and others. The courts below have thus rightly found the petitioner guilty of the offences under Secs.279, 337 and 338 of IPC. Hence, the conviction is only to be confirmed. 7. The learned counsel for the petitioner submits that the incident took place in the year 1993 and so leniency may be shown to avoid the jail sentence. But since road traffic accidents are on the increase, showing leniency to such rash or reckless drivers would inculcate a feeling that they will be let off on payment of a paltry amount as fine. Necessity of awarding deterrent sentence in motor accident cases was highlighted by the honourable Supreme Court. The decision in **Dalbir Sing** case (2000 (5) SCC 82) was followed by the Apex Court in the decision **State of Punjab v. Balwinder Sing &** Crl.R.P.No.1182/2002 : 6 : ## **Others** (2012(2) SCC 182). ## In **Dalbir Sing** cited supra it was held thus: “1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” 8. The ratio therein was reiterated in **B.Nagabhushanam v. State of Karnataka** (2008 (5) SCC 730. Considering the increased number of road accidents, the Apex Court reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Sec.304A of IPC as attracting the benevolent provisions of Sec.4 of the Probation of Offenders Act, 1958. In that Crl.R.P.No.1182/2002 : 7 : case, the Apex Court while setting aside the impugned order of the High Court, imposed a sentence of R.I for six months and a fine of Rs.5,000/-. 9. The punishment prescribed for the offence under Sec.338 of IPC and 304A of IPC is the same. However, I find that the sentence is to be modified to some extent. 10. In the result, this criminal revision petition is disposed of as stated below: The conviction is confirmed. The substantive sentence awarded by the courts below for offences under Sec.279 and 338 will stand reduced to S.I for fifteen days each. The substantive sentences will run concurrently. The fine imposed and the default sentence awarded by the courts below will stand confirmed. ## Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge