Hyderali Puthenveettill v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 26TH DAY OF SEPTEMBER 2012/4TH ASWINA 1934** **Crl.Rev.Pet.No. 3138 of 2006 ( )** **-------------------------------CRA.285/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.149/1999 of J.M.F.C.-I, PERINTHALMANNA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **HYDERALI PUTHENVEETTIL, AGED 32 YEARS, S/O.HAMZA, KOTTAPPADAM AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.M.SASINDRAN** **SRI.K.P.HARISH** **COMPLAINANT(S)/COMPLAINANT:** **---------------------------** **STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR, SMT. JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 3138 of 2006** **========================= Dated this the 26[th] day of September, 2012** ## **ORDER** This revision is directed against the concurrent conviction entered and sentence passed against the petitioner for offences punishable under Sec.279 and 304A of IPC. He was sentenced to undergo rigorous imprisonment for 1½ years and to pay Rs.2,500/- as fine and in default of payment of the same, to undergo rigorous imprisonment for three months. 2. The learned counsel for the revision petitioner submits that except PW1, the brother of the deceased, no other witness supported the prosecution. It is also submitted that the evidence given by PW1 is not worthy of credence. PW1, even according to the prosecution, was Crl.R.P.No.3138/2006 : 2 : a salesman in a medical shop and so it was not at all possible for him to see the actual incident. The deceased is the brother of PW1. Since other independent witnesses turned hostile, the court below should not have placed reliance on the evidence given by PW1, the learned counsel submits. According to the learned counsel, there is no evidence to prove that it was the petitioner, who drove the jeep in question nor is there any evidence to show that it was driven in a rash or negligent manner. 3. The learned public prosecutor submits that there is a detailed discussion of evidence in the judgment of the learned Magistrate. The appellate court also scanned the evidence thoroughly and has rightly confirmed the verdict of conviction and as there is no illegality, irregularity or incorrectness in the finding entered by the courts below, this court sitting in revision cannot upset the concurrent finding. 4. The jeep bearing registration No.KL 02 8792 Crl.R.P.No.3138/2006 : 3 : was proceeding from Mannarkkad to Perinthalmanna. The road at that place lies in east-west direction. The jeep was proceeding from east to west. The tar road at that place has a width of 10 metres and the road has a margin of two metres on either side. The deceased Sreenivasan was walking along the northern side of the road. Ext.P7, the scene mahazar shows that the road at that place is having a straight vision of 150 metres to one side and 100 metres to the other side. There was no case for the accused that there was any other vehicle proceeding ahead of the jeep KL 02 8792. In other words, there was no case that the vision of the driver was obstructed by any other vehicle. The place of incident is 2 metres away to the south of the northern end of the road. 5. The accused made a total denial of the case put forward by the prosecution. PW1 has stated that it was the accused who drove the jeep at the relevant time. Ext.P9, the trip sheet, which was written and signed by Crl.R.P.No.3138/2006 : 4 : the accused was proved in this case which also shows that it was the petitioner who drove the jeep at the relevant time. The evidence on that point was rightly accepted by the courts below. 6. It was contended by the defence that there was an autorickshaw parked on the southern side of the road and as the deceased wanted to board that autorickshaw, he crossed the road and while doing so, the jeep happened to dash against the deceased. Except the suggestion so put by the accused to PW1, there was no specific case for the accused himself as to the cause of the accident. The suggestion put to PW1 was stoutly denied by him. PW1 is definite and emphatic in his statement that he saw the deceased walking along the road and that he had also seen the jeep coming at high speed from east to west. The place of incident as depicted in Ext.P7 mahazar shows that it is almost in front of or near the hospital and that it was a busy place. If so, the Crl.R.P.No.3138/2006 : 5 : driver of the vehicle was expected to be doubly cautious and he should have taken reasonable care to avert any possible accident. The very fact that the tar road itself at that place is having a width of 10 metres would clearly show that the driver of the vehicle was rash or negligent as the vehicle was taken to the extreme wrong side. There was no case for the accused how his jeep happened to be on the extreme wrong side of the road. That, according to the prosecution, would prove positively that the jeep was driven by the petitioner in a rash or negligent manner endangering human life. 7. The courts below have analysed the evidence in detail in its correct perspective and found the petitioner guilty of the offence punishable under Sec.304A of IPC and was rightly convicted by that court. It requires no interference. 8. The learned counsel for the petitioner submits that the substantive sentence may be reduced. Following Crl.R.P.No.3138/2006 : 6 : the decision in **Dalbir Sing case (2000 (5) SCC 82)** and in **B.Nagabhushanam v. State of Karnataka (2008(5) SCC 730)** , it was held by the apex court in **State of Punjab v. Balwinder Singh and Others** (2012(2)SCC 182) that 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. It was also held by the apex court : _“For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt._ ” 9. In this case, it is evident that the courts below have taken note of the rashness or culpable negligence of the accused in driving the vehicle along the extreme wrong side causing the death of an innocent pedestrian. Showing leniency to such reckless drivers would not be Crl.R.P.No.3138/2006 : 7 : conducive to the cause of justice. Sentence must commensurate with the gravity of the crime. However, considering all the aspects, the substantive sentence awarded by the court below is reduced to rigorous imprisonment for nine months. The learned Magistrate will take steps to execute the sentence without delay. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge