Christopher, S/O Chellayyan Nadar v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 3743 OF 2006 ``` ``` AGAINST THE CONVICTION AND SENTENCE IN CR.A.NO.100 OF 2000 OF SESSIONS COURT,THIRUVANANTHAPURAM AND IN C.C.NO.591/1997 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, NEYYATTINKARA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED`** ``` CHRISTOPHER, S/O.CHELLAYYAN NADAR, KILIYOOR PLAVILA PUTHEN VEEDU, VELLARADA DESOM, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.G.SUDHEER ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SMT.SEETHA.S, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P.No.3743/2006 ## **G.GIRISH, J.** **--------------Crl.R.P.No.3743 of 2006** **-----------------------------Dated this the 28[th] day of February, 2024 -------------------------------------------------** ## **O R D E R** Aggrieved by the concurrent findings of conviction and sentence under Sections 279, 337 and 338 I.P.C of the Judicial First Class Magistrate-III, Neyyattinkara and the Additional Sessions Court, Fast Track-I, Thiruvananthapuram, the accused in Crime No.151/1997 of Vellarada Police Station has filed this revision. 2. The prosecution case is that on 12.05.1997, at about 2:45 p.m, the accused drove an autorickshaw with Reg.No.KL- 01-C 8729 through Vellarada-Anchuvarankal public road in a rash and negligent manner likely to endanger human life, and caused the vehicle to hit on the right side of the handle of a motor bike with Reg.No.KL-01-H 4244 driven by PW1 through the said road in the same direction, resulting in the fall of PW1 and PW2, the pillion rider, and suffering serious injuries including fracture of bones and teeth. 3 Crl.R.P.No.3743/2006 3. On the basis of the final report filed by the Sub Inspector of Police, Vellarada, the case was taken into files as C.C.No.591/1997 of the Judicial First Class Magistrate-III, Neyyattinkara, and proceedings initiated against the petitioner. In the trial before the learned Magistrate, nine witnesses were examined from the part of the prosecution as PW1 to PW9and 11 documents marked as Exts.P1 to P11. Though the petitioner was given opportunity to adduce defence evidence after questioning him under Section 313 Cr.P.C, he did not opt to adduce any evidence. As per the judgment rendered on 17.02.2000, the learned Magistrate convicted the petitioner for the commission of offence under Sections 279, 337 and 338 I.P.C, and sentenced him to undergo simple imprisonment for six months under Section 338 I.P.C and fine Rs.1,000/- under Section 279 I.P.C. No separate punishment was awarded for the commission of offence under Section 337 I.P.C. Though the petitioner preferred appeal before the Sessions Court, Thiruvananthapuram, the learned Additional Sessions Judge, Fast Track-I who considered the Criminal Appeal No.100/2000, declined to interfere with the findings of the learned 4 Crl.R.P.No.3743/2006 Magistrate. Challenging the above concurrent findings of the trial court and the appellate court, the petitioner is here before this Court with this revision. 4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 5. The trial court as well as the appellate court placed reliance upon the evidence of PW1 to PW3 and PW5 in arriving at the finding that the petitioner had driven the autorickshaw in a rash and negligent manner likely to endanger human life leading to the accident involved in this case. Among the above witnesses, PW1 was the rider, and PW2 the pillion rider of the motor bike which was hit by the autorickshaw driven by the petitioner. Both the above witnesses testified before the trial court in support of the prosecution case. That apart, the evidence of PW3 and PW5 who happened to see the accident, also pointed to the rash and negligent driving of the autorickshaw by the revision petitioner as the cause of the accident. As rightly observed by the trial court and appellate court, there is absolutely no reason to disbelieve the evidence tendered by the above witnesses. It is true that PW2 was 5 Crl.R.P.No.3743/2006 declared hostile by the prosecution for the reason that he stated before the trial court that he did not recollect the accused at the time when the accident happened. However, the totality of the statements tendered by the said witness during chief examination and cross-examination would lead to the irresistible conclusion of rash and negligent driving on the part of the petitioner as the cause of the accident involved in this case. There is absolutely no reason to displace the findings of the trial court and the appellate court in the impugned judgments, which are on the basis of meticulous analysis of the evidence on record. 6. The proposition of law upon the scope of interference in revision, is well settled by a catena of decisions of the Hon'ble Supreme Court. 7. In _**State of Kerala v. Jathadevan Namboodiri : AIR 1999 SC 981**_ , the Hon'ble Supreme Court held as follows: _Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as_ 6 Crl.R.P.No.3743/2006 _Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice._ ## 8. In _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr : 2015 (3) SCC 123** ,_ it has been held by the Hon'ble Supreme Court as follows: _Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction_ . 9. Referring the above dictums, the Apex Court has observed in _**Kishan Rao v. Shankargouda : 2018 (8) SCC**_ ## _**165**_ as follows: _Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is_ 7 Crl.R.P.No.3743/2006 _perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14:_ _”14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 8 Crl.R.P.No.3743/2006 10. Therefore, there is absolutely no reason to interfere with the findings of the trial court and appellate court, leading to the conviction of the petitioner for the commission of offences under Sections 279, 337 and 338 I.P.C. However, taking into account the fact that the incident occurred more than a quarter of a century ago, and the petitioner has suffered the ordeals of criminal prosecution throughout the past more than 26 years, I feel that the sentence of simple imprisonment for six months imposed by the trial court under Section 338 I.P.C has to be reduced to imprisonment till the rising of court, and fine Rs.1,000/-. So also, the petitioner is liable to pay fine Rs.1,000/- for the commission of offence under Section 279 I.P.C and fine Rs.500/- for the commission of offence under Section 337 I.P.C. With the above modification of sentence, the findings of the trial court and appellate court in all other respects, are confirmed. In the result, the revision petition is allowed in part as follows: - (i) The conviction of the petitioner/accused under Section 279, 337 and 338 I.P.C by the trial court and appellate court stands confirmed. 9 Crl.R.P.No.3743/2006 (ii) The sentence imposed upon the petitioner/accused is modified to imprisonment till the rising of court and fine Rs.1,000/- (Rupees one thousand only) for the commission of offence under Section 338 I.P.C, and fine Rs.1,000/- (Rupees one thousand only) and Rs.500/- (Rupees five hundred only) respectively for the commission of offence under Sections 279 and 337 I.P.C. In default of payment of the total fine Rs.2,500/(Rupees two thousand five hundred only) as directed above, the petitioner would undergo simple imprisonment for a term of three months. (iii) Transmit a copy of this judgment along with case records to the trial court for immediate enforcement of sentence. (sd/-) ## **G.GIRISH, JUDGE** jsr