Balan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934** ## **Crl.Rev.Pet.No. 2039 of 2004 ( )** **-------------------------------CRA.NO.29/2000 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC-I), KOZHIKODE CC.NO.427/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT,PERAMBRA** **---------------------------** ## **PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------** **BALAN, S/O. KANARAN, CHANGAROTH, AMSOM DESOM, KOYILANDY TALUK.** **BY ADVS.SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER** **RESPONDENT/COMPLAINANT:** **---------------------------------------------------** **STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, PERUVANNAMUZHI, KOZHIKODE DISTRICT.** **BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.2039 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November, 2012** ## **O R D E R** The petitioner is the accused in C.C. No.427/1996 before the Judicial First Class Magistrate's Court-I, Perambra. He was prosecuted for offences punishable under Sections 279 & 304 (A) IPC. The prosecution case was as follows: On 03.03.1996, at about 6.30 p.m., at Koovapoyil, the accused drove a lorry bearing registration No.KL.11-A 8899 in a rash and negligent manner so as to endanger human life, through the PerambraPeruvannamuzhi public road and by his rashness and negligence of driving, knocked down cyclist Raju, who succumbed to the injuries sustained by him as a result, at the Medical College Hospital, Kozhikode and thereby the accused committed the offence charged against him. The prosecution examined PWs 1 to 12 and marked Exts.P1 to P8 (a). The accused did not adduce any evidence. After Crl. Rev. Petition No.2039 of 2004 **-2-** appreciating the evidence adduced, the Magistrate convicted the petitioner under both Sections and sentenced him to undergo rigorous imprisonment for three months under Section 279 of IPC and rigorous imprisonment for one year and fine of Rs.3,000/- with a default sentence of simple imprisonment for three months under Section 304 (A) of the IPC. The petitioner challenged the judgment of the Magistrate in Crl. Appeal No.29/2000 before the Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode, who confirmed both the conviction and the sentence, dismissing the appeal. The petitioner is challenging the judgments of the courts below. 2. The contention of the petitioner is that the finding of the courts below on the evidence available is perverse. According to him, the scene mahazar makes it abundantly clear that the accident occurred on the middle of the road. He points out that from a reading of the scene mahazar, the only conclusion possible is that the accident occurred because the cyclist drove the cycle through the middle of the road and not because of any rashness and negligence on Crl. Rev. Petition No.2039 of 2004 **-3-** the part of the petitioner. According to him, the width of the road at the place of accident was only 5.10 mtrs. and the lorry driven by the petitioner itself was 2.20 mtrs width. The accident occurred 2.20 mtrs. north of the southern end of the road, which was lying east-west. The time of accident was 6.30 p.m. PWs 1 & 2, who witnessed the accident did not actually see the accident because they were also walking in the same direction of the lorry and the accident occurred about 50 meters ahead, after the lorry passed them. As the lorry was 2.20 mtrs. wide the witness could not have seen the accident from behind the lorry and testified that the accident occurred because of the rashness and negligence of the petitioner. Therefore, according to the learned counsel for the petitioner, the prosecution has miserably failed to prove the guilt of the petitioner beyond any reasonable doubt. In any case the petitioner is entitled to benefit of doubt, is the contention raised. 3. On the other hand, the learned Public Prosecutor would contend that two eye witnesses had given categoric evidence to the effect that the lorry was travelling on the Crl. Rev. Petition No.2039 of 2004 **-4-** wrong side of the road in a high speed, whose evidence could not be shaken to any extent by cross-examination by the petitioner. According to the learned Public Prosecutor, the evidence of PWs 1 & 2, who are the eye witnesses is corroborated by the scene mahazar completely. Therefore, there cannot be any doubt about the guilt of the petitioner and as such the petitioner is not entitled to any relief as claimed, is the contention of the learned Public Prosecutor. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the learned Public Prosecutor, PWs 1 & 2, who are the eye witnesses to the accident gave categoric evidence to the effect that the accident occurred because the lorry driven by the petitioner came on his wrong side of the road in a high speed. Of course, an attempt has been made by the petitioner in cross-examination to show that they are interested witnesses insofar as they are friends of the deceased cyclist. But in this context it must be noted that PW1 has stated that he knows both the accused as well as the deceased for four years. I am not satisfied that in such circumstances, it Crl. Rev. Petition No.2039 of 2004 **-5-** can be stated that the eye witnesses were interested witnesses. Apart from that, I am of opinion that the scene mahazar corroborates the evidence of the eye witnesses completely. The scene mahazar clearly states that the scene of occurrence is 2.20 mtrs. north from the southern tar end of the road. The road is 5.10 mtrs. wide with 1.50 mtrs. width for the southern road margin and 40 cms. road margin on the northern side. The lorry itself is 2.20 mtrs. wide. The scene of accident is therefore at least beyond 0.35 meters on the wrong side of the petitioner. Moreover, it is specifically stated in the scene mahazar that 7.20 mtrs. west of the tar road there is a tyre mark 1.45 cms. away from the southern end of the tarred portion of the road and also another tyre mark 1.70 mtrs. south. That means, immediately before the accident the petitioner's lorry had come to the southern end of the road, which is his wrong side and suddenly applied brakes and thereafter only the accident occurred. That would clearly show that the petitioner was driving his lorry on the southern side of the road, which is clearly his wrong side. Therefore it is evident Crl. Rev. Petition No.2039 of 2004 **-6-** that the cyclist was forced to turn towards the centre of the road to avoid the petitioner's vehicle, which was coming on the southern end towards him. That evidence is more than sufficient to show that the petitioner was rash and negligent in driving the vehicle. The witnesses also deposed that the petitioner was driving the lorry in great speed. 6. Of course, the learned counsel for the petitioner relies on the decisions of this Court in **Vijayan v. State of Kerala [2010 (3) KLT SN 17 (C. No.22)** , **State of Karnataka v. Sadanand Parusharam Hosurkar (2000 KHC 2387)** & **State of Rajasthan v. Nauratan Mal (2002 KHC 2006)** in support of his contentions. But I am of opinion that the said decisions have no application to the facts of this case in view of the above said clear evidence. In any event, I cannot re-appreciate the evidence and come to a different conclusion in exercise of my powers under Section 397 of the Code of Criminal Procedure, unless the petitioner proves that the appreciation of evidence by the lower courts is demonstrably perverse. I do not find any perversity whatsoever in appreciation of evidence by the Crl. Rev. Petition No.2039 of 2004 **-7-** courts below. Therefore, I have no hesitation to uphold the conviction entered by the courts below. 7. The learned counsel for the petitioner makes a fervent plea for a lenient view in the matter of punishment. Taking into account the facts and circumstances of the case, I reduce the sentence of imprisonment for the offence under Section 279 of the IPC to one month rigorous imprisonment and six months rigorous imprisonment for offence under Section 304 (A) of the IPC. But the fine is enhanced to Rs.10,000/- (Rupees ten thousand only) with a default sentence of six months simple imprisonment. The Crl.R.P. is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/