Girish v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ``` CRL.REV.PET NO. 333 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 17.07.2009 IN IN CC 319/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERY ``` ``` AGAINST THE JUDGMENT DATED 25.11.2010 IN CRA 514/2009 OF ADDITIONAL DISTRICT COURT, FAST TRACK COURT -I, THRISSUR ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` GIRISH, S/O. KUTTAN, UNNIYAMBATH HOUSE, MANJAKKAD DESOM, SHORNUR VILLAGE, THRISSUR. ``` ``` BY ADV SRI.V.BINOY RAM ``` ## `RESPONDENT/RESPONDENT/DEFACTO COMPLAINANT:` ``` STATE OF KERALA REP. BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## `OTHER PRESENT:` ``` SR PP SEETHA S ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.No.333/2011 ``` ``` -:2:- ``` Dated this the 13[th] day of October,2023 ## **O R D E R** The revision petition is filed challenging the correctness, legality and propriety of the judgments in Crl.A. No.514/2009 passed by the Court of the Additional Sessions Judge, (Fast Track Court-I),Thrissur(Appellate Court) and in C.C.No.319/2006 by the Court of the Judicial First Class Magistrate, Wadakkanchery (Trial Court), holding the revision petitioner(accused) guilty and convicting him for the offences under Sections 279 & 304-A of the Indian Penal Code, 1860(in short, ‘IPC’) and Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988(in short, ‘M.V. Act’). ## **Gist of the prosecution case:** 2. The prosecution case is that: on 04.10.2006, at about 7.15 a.m., the accused drove the auto rickshaw bearing registration No.KL-9-9605 through the Thrissur-Shornur public road, in the south to north ``` Crl.R.P.No.333/2011 ``` ``` -:3:- ``` direction, in a rash and negligent manner so as to endanger human life, that too, without a valid driving licence and hit a pedestrian, named ‘Gopidas’. The pedestrian succumbed to the injuries on his way to the hospital. The scene of occurrence was in front of building No.6/473 of Vallathole Nagar Panchayat at Cheruthuruthy. In the incident, PWs 1 & 3 namely; ‘Subramanian’ and ‘Abdulla’, who were passengers in the auto rickshaw, also sustained simple injuries. The Cheruthuruthy Police, who registered Crime No.281/2006, after investigation filed their final report, alleging that the accused committed the offences under Sections 279, 337 and 304-A of the IPC and Section 3(1) read with Section 181 of the M.V. Act. 3. The accused pleaded not guilty to the accusation read over to him. In the trial, the prosecution had examined PWs 1 and 13, and marked Exts P1 to P6(a) documents in evidence. The accused had denied the incriminating circumstances appearing ``` Crl.R.P.No.333/2011 ``` ``` -:4:- ``` against him in the evidence in the questioning under Section 313 of the Code of Criminal Procedure, 1973(in short, ‘Code’). ## **Trial Court judgment:** 4. The learned Magistrate, after analysing the materials on record, convicted the accused for the offences under Sections 279 & 304-A of the IPC and Section 3(1) read with Section 181 of the M.V. Act and sentenced him to undergo simple imprisonment for a period of three months for the offence under Section 279 of the IPC, simple imprisonment for a period of six months for the offence under Section 304-A of the IPC and to pay a fine of Rs.500/- for the offence under Section 3(1) read with Section 181 of the M.V. Act. The accused was found not guilty for the offence under Section 337 of the IPC. The learned Magistrate also imposed a default sentence of 15 days, in case the accused failed to pay the fine amount. The substantive sentences were ordered to run concurrently. ``` Crl.R.P.No.333/2011 ``` ``` -:5:- ``` 6. Aggrieved by the said judgment, the accused preferred Crl.A.No.514/2009 before the Appellate Court. ## **Appellate Court judgment:** 6. The Appellate Court, after re-appreciating the materials placed on record, dismissed the appeal, confirming the conviction and sentence passed by the Trial Court. 7. It is assailing the concurrent judgments of the court below, that the revision petition is filed. 8. Heard; Sri. Binoy Ram V., the learned counsel appearing for the revision petitioner and Smt. Seetha. S, the learned Senior Public Prosecutor appearing for the respondent – State. 9. Sri. Binoy Ram vehemently argued that the courts below have fallen in error in concurrently convicting the accused. The courts below have failed to take note of the glaring inconsistencies in the oral testimonies of PWs 1, 3 & 8, who claimed to be the eye ``` Crl.R.P.No.333/2011 ``` ``` -:6:- ``` witnesses. The courts below have blindly believed their oral testimonies to arrive at the conclusion. There is no material to corroborate their evidence. Therefore, the revision petition is only to be allowed, by setting aside the judgments of the courts below and holding the accused not guilty for the offences. 10. The question is whether there is any illegality, impropriety or irregularity in the judgments of the courts below. 11. The revisional jurisdiction of this Court under Sections 397 to 401 of the Cr.P.C is well settled in a catena of precedents holding that the power is to be sparingly exercised and in cases of exceptional rarity. The power is more in the nature of a supervisory jurisdiction, to correct patent errors, manifest illegality and when there is misreading of records. 12. In **Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the ``` Crl.R.P.No.333/2011 ``` ``` -:7:- ``` ## scope and purport of the powers under Sections 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 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 non-consideration 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.” ``` Crl.R.P.No.333/2011 ``` ``` -:8:- ``` 13. The prosecution case is that, on 04.10.2006, at about 7.15 a.m., the accused without a valid driving licence drove the auto rickshaw in question, in a rash and negligent manner through Thrissur-Shornur public road in the south-north direction, and when it reached in front of the house of a person named ‘Pokker’, near the Cheruthuruthy Police Station, hit the deceased, who was standing on the side of the western side of the road. The said person succumbed to the injuries on the way to hospital. 14. PWs 1 & 3 are the sterling witnesses who travelled in the auto rickshaw and also sustained injuries. PW2 – the son of the deceased – who lodged Ext P6(a) First Information Report [FIR] had not seen the incident. Similarly, PW 8 is another eye witness, who was standing on the opposite side of the road, who also witnessed the accident. The said three witnesses have in unequivocal terms testified that they have seen ``` Crl.R.P.No.333/2011 ``` ``` -:9:- ``` the accused driving the vehicle in a rash and negligent manner and hitting the deceased. Their oral testimonies are of high quality and caliber and have not been impeached. Therefore, I find a ring of truth in their testimonies and accept the same. 15. In addition to the said witnesses, the prosecution examined PWs 4 & 5 – the attesting witnesses to Ext P2 scene mahazar, PWs 6 & 7 – the attesting witnesses to Ext P3 seizure mahazar, PW9 – the attesting witness to Ext P4 inquest report, PW 10 – the AMVI, who inspected the vehicle and proved Ext P5 certificate, PW 11 – the Assistant Sub Inspector of Police, who recorded Ext P1 First Information Statement [FIS] and registered Ext P6(a) FIR, PW 12 – the Sub Inspector of Police, who conducted the investigation and PW 13 – the Lecturer of Forensic Medicine at the Medical College Hospital, Thrissur, who conducted the postmortem and proved Ext P6 postmortem certificate. ``` Crl.R.P.No.333/2011 ``` ``` -:10:- ``` 16. The courts below, after analyzing the oral testimonies of PWs 1, 3 and 8 read with the oral testimonies of the official witnesses and Exts P1 to P6(a) have concurrently arrived at the conclusion that the accused drove the auto rickshaw in a rash and negligent manner and hit the deceased. Although a charge under Section 3(1) read with Section 181 of the M.V. Act was framed against the accused, he did not produce his driving licence. In view of Section 106 of the Indian Evidence Act, 1872, it is only to be inferred that the accused did not hold a valid driving licence at the time of the incident. Consequentially, the courts below found the accused guilty and convicted him for the offences under Sections 279, 304A of the IPC and Section 3(1) read with Section 181 of the M.V. Act. 17. On a consideration of the materials on record, I do not find any illegality, irregularity or impropriety in the conclusions arrived at by the courts below holding the revision petitioner guilty for the above ``` Crl.R.P.No.333/2011 ``` ``` -:11:- ``` offences. Thus, I confirm the conviction of the revision petitioner/accused for the above offences. 18. The learned counsel appearing for the revision petitioner prayed that a lenient view may be taken in the matter of sentence, especially since the accident allegedly happened on 04.10.2006 i.e.,17 years back. The revision petitioner has repented and regretted for the offence alleged against him. The revision petitioner is 50 years of age and is the sole breadwinner of his family. Furthermore, the revision petitioner is prepared to pay any amount as compensation to the legal heirs of the deceased. Hence, the substantive sentence may be set aside and an order of fine/compensation may be passed. 19. In **Soman vs. State of Kerala** [ (2013) 11 SCC 382], the Hon'ble Supreme Court, after a survey of all the earlier precedents on the subject of sentencing , has held that, a court while imposing a sentence, has to take into account a combination of ``` Crl.R.P.No.333/2011 ``` ``` -:12:- ``` different factors namely; (i) proportionality, (ii) deterrence, and (iii) rehabilitation. 20. Keeping in view the above principles laid down in **Soman** (supra) and taking into account the fact that the revision petitioner did not even hold a valid driving licence at the time of the incident, which resulted in the death of ‘Gopidas’, I am not inclined to set aside the substantive sentence and limit to an order of fine alone. This Court is of the view that the revision petitioner/accused is to be sentenced to imprisonment for a period of one month each for the offences under Sections 279 and 304-A of the IPC, which would be proportionate to offences committed by him and be a sufficient deterrent to the revision petitioner/accused to exercise more care and caution in driving vehicles in the future, which would meet the ends of justice. 21. In the result, - (i) The revision petition is partly allowed; - (ii) The conviction imposed by the courts below in ``` Crl.R.P.No.333/2011 ``` ## `-:13:-` Crl.A. No.514/2009 and C.C.No.319/2006 is confirmed; - (iii) The sentence imposed by the courts below is modified and reduced by sentencing the revision petitioner/accused to undergo imprisonment for a period of one month for the offence under Section 279 of the IPC and imprisonment for a period of one month and pay a fine of Rs.4,000/- for the offence under Section 304-A of the IPC, and to pay a fine of Rs.500/- under Section 3(1) read with Section 181 of the M.V. Act. In default of payment of the fines imposed, under the above offences, the revision petitioner/accused shall undergo imprisonment for a further period of one month. The substantive sentence shall run concurrently. - (iv) The revision petitioner/accused is directed to surrender before the Trial Court on or before 13.12.2023 to undergo the substantive sentence and pay the fine amount. - (v) The execution of the sentence shall stand suspended till 13.12.2023. ``` Crl.R.P.No.333/2011 ``` ``` -:14:- ``` - (vi) If the revision petitioner/accused fails to appear before the Trial Court as ordered above, the Trial Court is directed to execute the sentence and realise the fine amount, in accordance with law. - (vii) The Registry is directed to forward a copy of the order to the Trial Court for compliance. Sd/- ## **C.S.DIAS,JUDGE** DST/13.10.23 //True copy// P.A.To Judge