Muhammed Kabeer v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-02-26
Court Decision / Holding: Convictions under Sections 279, 337 and 338 IPC are not sustainable; set aside those convictions and their sentences. The conviction and sentence under Section 3(1) read with Section 181 MV Act and Section 128 read with Section 177 MV Act are sustained. Revision petition allowed in part.
Final Disposition: Revision petition allowed in part.

Parties to the Case

Appellants / Petitioners

Muhammed Kabeer

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Paulson Thomas

Counsels for Respondents

• Sri Liju V Stephen

Case Synopsis & Summary

This is a criminal revision petition filed by Muhammed Kabeer challenging the concurrent convictions and sentences arising from a road traffic accident on 15-06-2008. The Judicial First Class Magistrate, Kothamangalam, convicted the accused under sections 279, 337 and 338 of the IPC and under sections 3(1) and 128 of the Motor Vehicles Act, with a sentence of fines and short imprisonment in default. The Additional District and Sessions Judge, Muvattupuzha, dismissed the appeal and modified the sentence, increasing fines while maintaining default imprisonment. The prosecution case described a collision on Kadavoor–Kulappuram public road involving the accused’s motorcycle (no license) and an autorickshaw, resulting in injuries to several occupants. The core dispute concerns negligence and the proper apportionment of fault. The petitioner contends that the lower courts mis-appreciated the evidence on negligence; the Scene Mahazar and the Vehicle Mahazar data indicate the autorickshaw occupied a significant portion of the road and may have been in the wrong lane, while the motorcycle’s speed evidence is not independently established. The High Court undertook a meticulous re-examination of Ext.P11 (Scene Mahazar) and the road geometry, concluding that the autorickshaw was on the wrong side at the time of the accident, and that the motorcycle rider was not negligent as found by the trial court. In consequence, the judge sets aside the IPC convictions, while upholding the MV Act offences and sentences, and allows the revision in part.

Provisions of Law Cited

Section 279 IPCSection 337 IPCSection 338 IPCSection 3(1) read with Section 181 of the Motor Vehicles ActSection 128 read with Section 177 of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The Revision Petitioner contends that the lower courts misapplied the evidence regarding negligence. The Scene Mahazar indicates the accident occurred at a point where the autorickshaw's position and the road width (3.31 m) suggest it was encroaching towards the opposite side, with the motorcycle hitting the left side of the autorickshaw. The petitioner argues that the motorcyclist’s speed and behavior were not independently proven to be negligent, and that the autorickshaw was on the wrong side. The conviction under IPC 279, 337, and 338 IPC is therefore unsustainable, and the appropriate liability lies under the Motor Vehicles Act provisions (3(1) read with 181; 128 read with 177). The petitioner seeks the set-aside of the IPC convictions while sustaining MV Act offences, in line with the evidence and road-geometry analysis.

Contentions of Respondents

The respondents submit that the trial court’s findings on negligence were properly supported by the evidence, including the sequence of events on 15-06-2008 and the lack of a license for the motorcyclist. They contend the appellate court correctly maintained and adjusted sentences. The evidence of rash and negligent driving on the part of the motorcycle, and the violations under the Motor Vehicles Act, justify the conviction and fines, and the revision petition is not tenable to upset the concurrent findings.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934** ## **Crl.Rev.Pet.No. 391 of 2013 ()** **-------------------------------** **AGAINST THE JUDGMENT IN CRA.92/2011 of THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, MUVATTUPUZHA** ## **AGAINST THE JUDGMENT IN ST.1925/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM** **===================** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------------------** **MUHAMMED KABEER, AGED 24 YEARS S/O.BAVUNNI, KURIYAPPILLIL HOUSE KADAVOOR LAKSHAMVEEDU COLONY, KADAVOOR KARA KADAVOOR VILLAGE.** **BY ADV. SRI.PAULSON THOMAS** ## **RESPONDENT/RESPONDENT:** **-------------------------------------------** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, POTHANIKKAD KOTHAMANGALAM TALUK.** ## **BY PUBLIC PROSECUTOR SRI.LIJU V STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SD** K.HARILAL, J. --------------------------------------Crl.R.P.No. 391 OF 2013 --------------------------------------Dated this the 26[th] day of February, 2013 O R D E R The Revision Petitioner is the accused in S.T.No.1925/2008 on the files of Judicial First Class Magistrate Court, Kothamangalam as well as the appellant in Criminal Appeal No. 92/2011 on the files of Additional District and Sessions Judge, Muvattupuzha. The Revision Petitioner was prosecuted for the offence punishable under Sections 279, 337 and 338 of Indian Penal Code and under Sections 3(1) and 128 of Motor Vehicles Act and Section 128 read with Section 177 of the Motor Vehicles Act. After trial, the learned Magistrate found the Accused/Revision Petitioner guilty of the offence under Sections 279, 337 and 338 of the Indian Penal Code and under Sections 3(1) and 128 of the Motor Vehicles Act and he was convicted thereunder. He was sentenced as follows: - i. To undergo simple imprisonment for one month and to pay a fine of Rs.1,000/- under Section 279 of the Indian Penal Code and in default, **2** _Crl.R.P. No. 391/2013_ simple imprisonment for one month. - ii. He was sentenced to pay a fine of Rs.500 under Section 337 of Indian Penal Code and in default to undergo simple imprisonment for a further period of fifteen days. - iii. For the offence under Section 338 of the Indian Penal Code, he was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1,000/- and in default, simple imprisonment for one month. - iv. He was sentenced to pay a fine of Rs.500/under Section 3(1) read with Section 181 of the M.V. Act, in default, simple imprisonment for fifteen days. - v. For the offence under Section 128 read with Section 177 of the M.V. Act, the Revision Petitioner was sentenced to pay a fine of Rs.100/- in default, to undergo simple imprisonment for a further period of three days. 2. Aggrieved by the conviction and sentence, the Revision Petitioner has preferred an appeal. The Appellate Court also confirmed the conviction and modified the sentence as follows: - i. The Revision Petitioner was sentenced to pay a fine of Rs.1,000/- for the offence under Section **3** _Crl.R.P. No. 391/2013_ 279 IPC, - ii. Rs.500/- for the offence under Section 337 IPC, - iii. Rs.1,000/- for the offence under Section 338 IPC, - iv. Rs.500/- for the offence under Section 3(1) read with Section 181 of M.V. Act, - v. Rs.100/- for the offence under Section 128 read with Section 177 of the Motor Vehicles Act. - vi. In default of payment of fine, the accused shall undergo simple imprisonment for a period of one month, 15 days, one month, 15 days, and 2 days respectively. 3. The prosecution case in brief is as follows. At about 4.30 PM on 15.06.2008 the accused who was having no valid licence to drive vehicle, drove motorcycle bearing registration No.KL-7/BB 233 rashly, negligently and at an excessive speed through Kadavoor - Kulappuram public road from west to eastern direction and it hit against the autorikshaw bearing registration No.KL-38/1310 driven by PW3 from the opposite direction of the road at Thekke Punnamattom Kara. As a result of the incident PWs.1,2 &4 who were traveling in the autorikshaw. PW3 who **4** _Crl.R.P. No. 391/2013_ was the driver of the autorikshaw at the relevant time and PWs 5 and 16, the pillion riders of the motorcycle and the accused, rider of the motorcycle sustained grievous as well as simple injuries. It is further alleged that the accused drove the motorcycle along with two persons on its rear side against the provisions of the Motor Vehicles Act. Thus the accused allegedly committed the aforesaid offences. The evidence before the lower court consists of the oral testimonies of PWs 1 to 17 and documents Exts.P1 to P18. 4. This Revision Petition is filed challenging the concurrent findings of conviction entered and modified sentence passed by the court below. Though this revision is filed on various grounds, the main point urged before me is that the appreciation of evidence regarding the findings of negligence is erroneous and perverse. The court below came to the conclusion that autorikshaw has taken only 1.52 meters on the road from the southern tar end in the road lying east to west. As per the Scene Mahazar, 1.52 meters towards north from the southern tar end of **5** _Crl.R.P. No. 391/2013_ the road is the accident spot. The width of the autorikshaw which is an 'Ape' model, is about 1.5 meters. That means the right hand side of the autorikshaw is approximately 2.52 meters away from the southern tar end. The width of the road as per Scene Mahazar is only 3.31 meter. Therefore, the court below concurrently failed to appreciate the evidence on negligence in its correct perspective. The court below wrongly found that the autorikshaw was keeping right side at the time of accident. On the basis of the above argument, I have meticulously examined Ext.P11 Scene Mahazar. 5. The road was lying east west and the autorikshaw was going towards west and the motor cycle was gong towards east. Admitted width of the road is 3.31 meters. These are admitted facts. Coming to location of the place of occurrence, the Scene Mahazar says that the place of occurrence is 1.52 meters towards north from the southern tar end. That means the left side of the autorikshaw was 1.52 meters away from the southern tar end at the time of accident. The Scene Mahazar further says that the **6** _Crl.R.P. No. 391/2013_ motor cycle hit the left side of the autorikshaw. 1.65 meters towards north from the southern road end can be treated as middle line of the road. If we take 1.5 meters as width of the autorikshaw, the autorikshaw exceeded 1.37 meters towards north from the middle line of the road. Obviously, autorikshaw was passing through the wrong side at the time of accident. Coming to the motor cycle, the motor cycle hit the autorikshaw at a distance of 1.52 meters towards north from the southern tar end, that means 13 cm towards south from the middle line of the road. Had the motor cyclist rode through his correct side the motor cycle would have hit at the middle of the autorikshaw. The court below erroneously appreciated the Scene Mahazar and Vehicle Mahazar and found that the motor cyclist was negligent in riding the vehicle. That apart there is no independent evidence regarding the speed of the motor cycle. Thus the finding regarding negligence is erroneous as well as perverse. 6. Therefore, I find that convictions under Sections 279, 337 and 338 IPC are not sustainable and I set aside the **7** _Crl.R.P. No. 391/2013_ conviction and sentence under Sections 279, 337 and 338 IPC and sustained the conviction and sentence under Section 3(1) read with Section 181 of the M.V. Act and Section 128 read with Section 177 of the M.V. Act. Consequently, this Revision Petition is allowed in part. Sd/K.HARILAL, JUDGE sd