David George @ Bijoy v State of Kerala and Abhijith Sunil

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 10 OF 2011 ``` ``` AGAINST THE JUDGMENT CC 65/2003 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS -I, PUNALUR ``` ``` CRA 182/2005 OF ADDITIONAL SESSIONS (ADHOC) I, KOLLAM ``` ## **`REVISION PETITIONER/APPELLANT /ACCUSED:`** ``` DAVID GEORGE @ BIJOY AGED 29 YEARS, S/O.C.D.GEORGE, MANOJ BHAVAN, MARTHANDAN KARA,, THINKAL KARIKKAKAM MURI, THINKAL KARIKKAKAM VILLAGE, KULATHOOPUZHA, KOLLAM DISTRICT. ``` ``` BY ADVS. SRI.VINCENT JOSEPH SRI.ARUN KUMAR ``` ## **`RESPONDENTS/RESPONDENT/COMPLAINANT:`** ``` 1STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` 2ABHIJITH SUNIL AGED 23 YEARS, S/O. SUNIL, SUNITHALAYAM, SAMNAGAR P.O., THINKAL KARIKKAKAM VILLAGE, KULATHOOPUZHA, KOLLAM DISTRICT, 691310 NOW RESIDING AT HARI BHAVAN VEEDU, KOTTATHALA P.O., PUTHOOR VILLAGE, MYLAM PANCHAYAT, KOTTARAKARA, KOLLAM DISTRICT , PIN - 691507 (ADDL. R2 IMPLEADED AS PER ORDER DATED 13.11.2023 IN CRL.M.A. 1/23 IN CR.R.P. 10/2011) ``` ``` BY ADVS. THANUJA ROSHAN GEORGE SHYNI DAS J.S.(K/001064/2020) ``` ``` SR PUBLIC PROSECUTOR SMT PUSHPALATHA M K ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`Crl.R.P NO.10 OF 2011 2`** ## **Dated this the 7[th] day of December, 2023** ## **ORDER** The revision petition is filed calling in question the legality and correctness of the judgment in Crl.Appeal No.182/2005 of the Court of the Additional Sessions Judge (Adhoc) I, Kollam (Appellate Court), confirming the judgment in C.C. No.65/2003 of the Court of the Judicial First Class Magistrate-I, Punalur (Trial Court), finding the revision petitioner guilty and convicting and sentencing him for the offences punishable under Sections 279 and 304 A of the Indian Penal Code (in short, ‘IPC’). The revision petitioner was the accused in the above case. 2. P rosecution case in brief: The prosecution case is that, on 7.10.2002, at about 3.30 p.m., the revision petitioner/accused drove a jeep bearing registration No. KL-5-D-4304 in a rash and negligent manner, through the Kulathupuzha - Anchal road from east to west, and when the jeep reached the ## **`Crl.R.P NO.10 OF 2011 3`** western side of Ezhamkulam junction, the jeep hit against a motor cycle bearing registration No. KL-2- J 4981, which came from the opposite direction ridden by one Sunilkumar (deceased). In the impact, the deceased was thrown down to the road and he sustained fatal injuries. The deceased succumbed to the injuries on the way to the hospital. Thus, the accused has committed the above offences. 3. On receipt of summons from the Trial Court, the accused entered appearance and denied the substance of accusation read over to him. In the trial, the prosecution examined PWs 1 to 13 and proved Exts.P1 to P11 and MOs 1 to 4 in evidence. The accused denied the incriminating circumstances appearing against him in the questioning under Section 313 of the Code. 4. The Trial Court, after appreciating the materials placed on record, found the accused guilty and convicted him for the above offences and sentenced him to undergo simple imprisonment for a period of three months and pay a fine of Rs.3000/- for the offence under Section ## **`Crl.R.P NO.10 OF 2011 4`** 304 A of the IPC and in default to undergo simple imprisonment for a further period of two months, and also sentenced the accused to pay a fine of Rs.750/- for the offence under Section 279 of the IPC, and in default to undergo simple imprisonment for a further period of 30 days. 5. Aggrieved by the said judgment, the accused filed Crl.Appeal No.182/2005 before the Appellate Court. 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, confirmed the conviction and sentence passed by the Trial Court. 7. It is assailing the concurrent judgments; the revision petition is filed. 8. Heard; Sri.Vincent Joseph, the learned counsel appearing for the revision petitioner, Smt.Pushpalatha, the Public Prosecutor appearing for the first respondentState and Smt.Thanuja Roshan George, the learned counsel appearing for the second respondent/ son of the deceased. ## **`Crl.R.P NO.10 OF 2011 5`** 9. Is there any illegality, impropriety or irregularity in the impugned judgments ? 10. The prosecution case is that, on 7.10.2002, the accused drove the jeep in a rash and negligent manner and hit the motor cycle ridden by the deceased. In the impact, the deceased fell down and succumbed to injures on the way to hospital. Therefore, the accused has committed the above offences. 11. To prove the prosecution case, the prosecution examined PWs 1 to 13. PWs2 and 4 are the sterling witnesses, who witnessed the incident. PW2 testified that while he was proceeding to Ezhamkulam junction on foot, he saw the accused driving the jeep at excessive speed and hitting the motor cycle ridden by the deceased. Similarly, PW4, another ocular witness, deposed that he saw the jeep driven by the accused hitting the motor cycle ridden by the deceased and the deceased falling down. The deceased fell unconscious and was bleeding. He identified the accused and testified that the jeep was driven at over-speed and was on the wrong side of the ## **`Crl.R.P NO.10 OF 2011 6`** road. PW1 was a person who gave Ext.P1 FIR, who did not witness the incident. PW3 is the driver of the vehicle, who had taken the deceased to the hospital. PW5 is an attester to Ext.P2 scene mahazar, PW6 is the owner of the motor cycle, PW7 is an attester to the Inquest Report, PW8 is the brother of the deceased, who was present at the time of preparation of the inquest report, PW9 is the doctor, who conducted the postmortem, PW10 is the police constable, who guarded the body of the deceased, PW11 is the Assistant Sub Inspector, who conducted the investigation and prepared Ext.P4 Inquest report and Ext.P2 scene mahazar, PW12 is the owner of the jeep and PW13 is the Sub Inspector, who had recorded Ext.P1 First Information Statement and registered Ext.P8 First Information Report. 12. The courts below, after appreciating the oral testimonies of PWs 1 to 13 and Exts.P1 to P11 and MOs1 to 4 have concurrently found that the accident occurred due to the rash and negligent driving of the jeep by the accused. ## **`Crl.R.P NO.10 OF 2011 7`** 13. It is well settled in a host of precedents by the Honourable Supreme Court and this Court that the revisional power of this Court is to be sparingly exercised and only in cases of exceptional rarity. The revisional power is more in the nature of a supervisory jurisdiction, to correct patent errors and manifest illegality and when there is total misreading of records. The revisional power of this Court cannot be equated to appellate powers. Merely because a different view is possible, the revisional Court shall not substitute the views of the fact finding Courts. 14. In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a ## **`Crl.R.P NO.10 OF 2011 8`** fit case to take cognizance for the purpose of issuing process to the appellant. 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. “ 15. I have carefully gone through the materials placed on record, particularly the testimonies of PWs 2 and 4. The said witnesses had seen the jeep driven by the accused at high speed and in a rash and negligent manner, which was the root cause for the incident and ## **`Crl.R.P NO.10 OF 2011 9`** the deceased loosing his life. Their testimonies stand corroborated with the evidence of PWs 1, 3, 5 to 13 r/w Exts.P1 to P11. Even if there are contradictions and omissions in the oral testimonies and the scene mahazar as contended by the learned counsel for the revision petitioner, same is not fatal to the prosecution. 16. On an analysis of the materials on record, I have no hesitation in my mind that the prosecution has proved the case beyond reasonable doubt that the accused has committed the above offences. Therefore, the accused is not entitled to the benefit of doubt. There is no illegality or irregularity in the concurrent findings of the courts below warranting interference by this Court by exercising its revisional powers. Hence, I confirm the conviction of the revision petitioner. 17. At the said point of time, the learned counsel for the revision petitioner submitted that, as the accident occurred nearly 21 years back and the revision petitioner is now aged 45 years and is the sole bread winner of the family, a lenient view may be taken in the matter of ## **`Crl.R.P NO.10 OF 2011 10`** sentence, and the revision petitioner/accused is prepared to pay a substantial amount as compensation to the son of the deceased/second respondent. The near relatives of the deceased have got compensation under the Motor Vehicles Act. Hence, the substantive sentence may be modified and reduced to one day (till the rising of the court). 18. On a consideration of the submission made by the learned counsel for the revision petitioner and keeping in mind the fact that the accident occurred 21 years back, and the revision petitioner has expressed his remorse for the accident and that he has volunteered to pay a substantial amount as compensation to the second respondent/son of the deceased, I am inclined to take a lenient view in the matter of sentence. Therefore, I am of the opinion that the ends of justice would be met by directing the revision petitioner to undergo imprisonment for one day (till the rising of the court) and to pay a compensation of Rs.50,000/- to the second respondent. ## **`Crl.R.P NO.10 OF 2011 11`** In the result, (i) The revision petition is partly allowed. (ii) The conviction of the revision petitioner by the courts below is confirmed and the sentence passed by the court below is modified and reduced to one day (till the rising of the court) (iii) The revision petitioner is ordered to deposit an amount of Rs.50,000/- before the Trial Court within 60 days from today, to be paid as compensation to the second respondent under Section 357(3) of the Code, and in default to undergo simple imprisonment for a further period of three months. (iv) The revision petitioner is directed to appear before the Trial Court on 8.2.2024, to undergo the substantive sentence and to deposit the compensation amount. (v) If the revision petitioner deposits the amount as ordered above, the same shall be released to the second respondent, in accordance with law under Section 357(3) of the Code. ## **`Crl.R.P NO.10 OF 2011 12`** (vi) In case of the failure of the revision petitioner to undergo the substantive sentence and/or to deposit the compensation amount, the Trial Court shall take steps to execute the sentence, in accordance with law. (vii) The execution of the sentence shall stand suspended till 7.2.2024. (viii) The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance. **SD/-** **C.S.DIAS, JUDGE** rmm7/12//2023