Jyothish @ Valiyavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933** **Crl.Rev.Pet.No. 472 of 2004 ( )** **-------------------------------** **CRA.NO.184/1998 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA CC.NO.51/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,HARIPAD** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **-----------------------------------------** **JYOTHISH @ VALIYAVAN, S/O.VALSALAN, CHIRAYIL KIZHAKKATHIL VEEDU, KANNIMOL CHERIYIL, SAKTHIKULANGARA PANCHAYAT, KOLLAM.** **BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.HARIKRISHNAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **------------------------------------** **1. STATE OF KERALA REPRESENTED BY** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. CIRCLE INSPECTOR OF POLICE,** **BY PUBLIC PROSECUTOR SMT.JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.R.P.No.472 of 2004 ---------------------------------------------------Dated this the 22nd day of February, 2012** ## **Order** The revision petitioner was convicted by the learned Magistrate for offence punishable under Sections 279 and 304A IPC and also under Section 134(a) r/w 187 of the M.V.Act. The learned Magistrate sentenced him to undergo S.I. for four months and to pay Rs.4000/- for offence under Section 304A IPC. No separate sentence was awarded for offence under Section 279 IPC. He was also sentenced to pay Rs.300/- for offence under Section 134(a) and (b) r/w Section 187 of the M.V.Act. 2. The gist of the prosecution case is that on 2.2.1997 at about 9 PM the mini lorry bearing registration No.KL-7-K 2239 was driven by the petitioner. It was driven from east to west along NH 47. The place of occurrence is about 200 meters to the east of Kannukali bridge in Karuvatta village. The deceased and P.Ws.1 to 6 and others were leading buffaloes along the southern side of the road. The deceased was in the front and others were behind. Mini lorry as mentioned above, driven by Crl.R.P.472/04 2 the petitioner in a rash and negligent manner, hit the deceased and also the buffaloes. The deceased and the buffaloes were thrown to the field on the southern side which was lying in a lower level. The injured who sustained fatal injuries later succumbed to those injuries. One buffaloe also died as it was hit by the mini lorry mentioned above. P.W.1 to P.W.6 were the eye witnesses to the occurrence. The contention that was advanced by the petitioner was that there is no legal evidence to prove the identity of the driver of the vehicle. Thus, according to the learned counsel, the courts below were not justified in holding that it was the petitioner who was the driver of the mini lorry involved in that accident. Therefore, the learned counsel submits that the conviction and sentence passed against the petitioner are unsustainable. 3. The main argument that has been advanced by the learned counsel for the petitioner is that though the witnesses have asserted that it was the petitioner who drove the mini lorry at the time of the accident, no test identification parade was conducted and as such their identification for the first time in court cannot be accepted by the court. In support of that Crl.R.P.472/04 3 submission, the learned counsel has relied upon several decisions including the decision of the Supreme Court in **State of Maharashtra v. Sukhdeo Singh** (AIR 1992 SC 2100). The learned Public Prosecutor would submit that all those decisions were rendered in a case where the accused stood charged for offence of murder. It is also submitted that the TIP is conducted by the Investigating Officer only to see that the investigation proceeds in the right direction. The identification of the accused by the witnesses in court is the substantive evidence. The cardinal question is whether the witnesses had sufficient time to identify the person as the driver of the vehicle in question at the relevant time who drove the vehicle. If there was sufficient time for those witnesses to have the physical features of the driver imprinted in their mind and if that evidence given by the witnesses infuses in the mind of the court, that actually is the substantive evidence. The non-conduct of the TIP in such cases cannot be a reason to upset the concurrent finding regarding the identity of the driver of the vehicle. 4. The learned counsel has also cited the decisions of the Delhi High Court in **Jitender Singh v. State** Crl.R.P.472/04 4 (Crl.Rev.P.No.418/2011 & Crl.M.B.1637/2011) and **Jai Bhagwan @ Kale v. State** (Crl.Rev.P.No.187/2009). The learned counsel submits that in that case the vehicle was coming from behind and thus the eye witness had no occasion to see the accused. Here P.Ws.1 and 3 to 6 are uniform in their assertion that they had seen the accused as the driver of the vehicle. P.W.1 in particular has stated that he saw the accused droving the vehicle. There is also evidence to show that there was electric light. Besides, P.W.1 and others were having lamp and torch also. Though an attempt was made by the defence to contend that P.W.4 has stated that there was power cut, on going through the evidence, it could be found that the power cut was at a time they had gone to the tea shop and thereafter they had walked for a while and it was at that time the incident took place. No suggestion was put to P.W.4 that at the relevant time there was no electric light. The evidence given by other witnesses that there was street light and it was in that light the accused was identified, was not properly assailed. The facts of the case dealt with by the Delhi High Court are entirely different. The court after considering the fact that if the witness had sufficient opportunity to see the accused at the Crl.R.P.472/04 5 time of accident, then that is a valid identification (see also the decision of the Supreme Court in **Malkhan Singh v. State of M.P.** [(2003) 5 SCC 746]. It was argued by the learned counsel that the witness had not told the police as to the identifying marks or features to the investigating officer. Though a person can identify another person, even if he is so familiar, it may not be possible for a witness to translate those identifying features. In other words, such identifying features are not translatable in so many words, even though he may be so closely acquainted with other man. The learned Magistrate who had the opportunity to watch the demeanor of the witnesses and judge the veracity has placed reliance on those witnesses. The learned Sessions Judge after reappreciation of the evidence concurred with that finding. Therefore, I find no illegality, irregularity or impropriety in the finding so entered by the courts below. 5. There was no case for the accused that he had taken reasonable care to avert the accident. The deceased and the buffaloes were proceeding along the southern side of the road. The road at that place was straight having direct vision. Nothing prevented the driver to avert the accident. On the other hand, Crl.R.P.472/04 6 the vehicle went to the extreme left side and hit the deceased and the buffaloes. There is no case that there were other vehicles on the road which caused obstruction to the sight or view. Therefore, in the light of the evidence available, the courts below were perfectly justified in finding the accused guilty of offences under Section 279 and 304A IPC. Though there is a duty enjoined on the accused to take the victim to the hospital immediately for rendering medical aid, that was admittedly not done by the petitioner. Therefore, the conviction for the offence under Section 134 (a) and (b) r/w Section 187 of the M.V.Act is also perfectly justified. Thus the conviction is only to be confirmed and I do so. 6. The learned counsel for the petitioner would submit that the accident took place in the year 1997, more than 15 years back and so at this distance of time it may not be proper to send him in jail. In this connection I am reminded of the decisions of the Supreme Court in **Dalbir Singh v. State of Haryana** [ (2000) 5 SCC 82] and **B.Nagabhushanam v. State of Karnataka** [ (2008) 5 SCC 730] which were followed by the Supreme Court in the latest decision in **State of Punjab v. Balwinder Singh** [(2012) 2 SCC 182] where the necessity of Crl.R.P.472/04 7 awarding deterrent sentence was reiterated. However, considering all the aspects, the substantive sentence is reduced to S.I. for three months. The Crl.R.P. is disposed of as above. **N.K.BALAKRISHNAN, JUDGE.** srd Crl.R.P.472/04 8