Priyadathan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933** **Crl.Rev.Pet.No. 1127 of 2002()** **------------------------------** **CRA.111/1997 of SESSIONS COURT, MANJERI CC.277/1996 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM** **....................** ## **REVN. PETITIONER: APPELLANT/ACCUSED:** **-----------------------------------------------------------------** **PRIYADATHAN, S/O. ACHUTHAN, MADAPPALLI HOUSE, PALLIKKUNNU VILLAGE, KANNUR.** **BY ADV. SRI.P.K.RAVISANKAR** ## **RESPONDENT/RESPONDENT/ COMPLAINANT:** **-------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR, SRI. S. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **MM** P.S. GOPINATHAN.J --------------------------------- **Crl.R.P NO.1127 OF 2002** ----------------------------------- **Dated this the 9[th] day of November , 2011** ## **J U D G M E N T** The revision petitioner is the accused in C.C No.277 of 1996 on the file of the Judicial Magistrate of the First Class, Malappuram. He was prosecuted for offences under Section 279 and 304A of the Indian Penal Code with an allegation that at 7.30 am on 31-3-1995 , the revision petitioner drove a mini lorry bearing Registeration No.KL-13A /6278 from east to west along the Manjeri-Kozhikode road in a rash and negligent manner so as to endanger human life; hit down and ran over two children, namely Mohammed Hassan aged 9 years and Bunyameen aged 13 years, who were walking along the northern side of the road from east to west. The lorry then went off the road and hit against the gate of a near by mosque, then on a coconut tree, and then on a telephone post which was uprooted and the vehicle came to halt at a distance of 100 mtrs. ## Crl.R.P.No.1127/2002 --2-- PW1 , an onlooker went to the near by Police Station and gave Ext. P1, First Information Statement on the basis of which a case as Crime No. 130/95 was registered for which Ext. P8, First Information Report was prepared. PW2, another onlooker rushed the victims to the K.P.M. Hospital, Malappuram, wherein the victims were declared brought dead. The investigation was taken over by PW10, the Deputy Superintendent of Police, who after completing the investigation, filed the charge sheet before the Trial Court, alleging offences under Section 279 and 304 A of Indian Penal Code. 2. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of prosecution, PW1 to PW10 were examined. Exts.P1 to P12 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal ## Crl.R.P.No.1127/2002 --3-- Procedure. He took up a defence that the children suddenly crossed the road and thus the accident occurred. However, no defence evidence was let in. The Learned Magistrate on appraisal of the evidence arrived at a finding of guilt. Consequently, by judgment dated 31-7-1997 , the revision petitioner was convicted and sentenced to simple imprisonment for one year and a fine of Rs.3,000/- under Section 304A of Indian Penal Code. No separate sentence was awarded for offence under Section 279 of Indian Penal Code. The revision petitioner was disqualified from holding driving licence for a period of two years. Aggrieved by the above conviction and sentence, he preferred Criminal Appeal 111 of 1997 before the Sessions Judge, Mancheri, who by the impugned judgment dated 29-07-2002, confirmed the conviction and sentence. Assailing the legality, correctness and propreity of the above conviction and sentence as confirmed in appeal , this revision ## Crl.R.P.No.1127/2002 --4-- petition was filed. 3. I have heard Adv.P.K.Ravi Sankar appearing for the Revision Petitioner . He took me through the impugned judgment as well as the evidence of PW1,PW2,PW4 and PW6 and also Ext. P7, the report of the R.T.O as well as Ext. P9, the scene Mahazar. 4. The evidence of PW1and PW2 would show that the mini lorry driven by the revision petitioner from east to west ran over the children, who were walking along the northern side of the road and as a result both the children sustained severe injury including rupture of the skull. The evidence of Pws 1 and 2 would show that the children had an instantaneous death. The evidence of PW2 would show that both the victims were rushed to the nearby hospital where they were declared dead. The identity of the revision petitioner as the driver of the offending vehicle deposed by PW's 1 and 2 is not disputed. Ext. P9 would show that the road, at the place of occurrence, ## Crl.R.P.No.1127/2002 --5-- was having a width of 7 metres and the accident spot was at 110 cm south from the northern tar end. The vehicle there after hit on the gate of the near by mosque , then on a coconut tree and then on a telephone post which was uprooted and came to a halt after running off the road to a distance of 100 metre. These facts would unerringly establish the rashness and negligence of the revision petitioner. The distance that covered after hitting the children would show that the vehicle was at extreme high speed and could be stopped at a distance of 100 metre,despite the fact that it hit on the compound wall , coconut tree and the telephone post. These circumstances would indicate that the vehicle was driven at a speed beyond the control of the revision petitioner. The learned counsel for the revision petitioner submitted that the accident might have occurred while the revision petitioner attempting to save the children who were crossing the road. The evidence of Pws 1 ## Crl.R.P.No.1127/2002 --6-- and 2 supported by Ext.P9 would belie the defence version. Admittedly, the vehicle was driven from east to west. Since the accident was just 110 cm towards south from the northern end , the defence that the children were hit while crossing the road is not at all correct. The revision petitioner was expected to drive the vehicle through the southern half of the road while driven from east to west. But, he had gone to northern half where the children were walking and ran over them . Therefore, the plea that the accident might have occurred while the revision petitioner attempting to save the children is devoid of any merit. 5. The learned counsel had canvassed my attention to the evidence of PW4 and submitted that there is no whisper in his evidence regarding the injuries sustained to the victims. Exts.P4 and P5 are the postmortem certificates. The learned Magistrate had copied down the injuries in the judgment from Crl.R.P.No.1127/2002 --7-- the postmortem certificates. Since, there is no mention regarding injuries found on the body of the victims in the evidence of PW4, such recording in the judgment copied from the postmortem certificate is not at all relevant. But the crucial fact is that PW4 had deposed in unambiguous terms that the death was due to head injury. The evidence of PW4, which is corroborated by Exts. P4 and P5 on that aspect was not challenged in cross examination. If the evidence of PW4 is read along with the evidence of PWs1 and 2, even if PW4 is silent regarding the ante mortem injury sustained to the victims, the cause of death cannot be doubted, because PW1 and PW2 had deposed that as a result of running over the children , the brain matters of both victims were thrown out. That fact is also noted in Ext.P9 scene mahazar. Therefore, the contention that PW4 had not deposed about the injury sustained is not at all significant in the light of the evidence of PW's 1 and 2. Irrespective of the silence of the Crl.R.P.No.1127/2002 --8-- PW4 regarding the injury sustained, cause of death is well established by the evidence of PW1,PW2 and PW4 and Exts. P4,P5 and P9. 6. The learned counsel had also advanced a contention that the spring leaf on the left side of the mini lorry was found broken, when PW6 , the Regional Transport Officer inspected the vehicle. In Ext. P7 also that is recorded. But the consistent evidence of PW6 is that it was a post accident damage sustained to the lorry. Though PW6 was subjected to searching cross-examination no material was brought out to show that the spring leaf was broken before the accident or that the accident was due to any mechanical defect. The break system was found efficient by PW6. It is also deposed that if the vehicle is driven at a speed of 32 Km/hr. , on application of the break it could be stopped within a distance of 6 mtrs. This evidence of PW6 would suggest that there wasn't any application of brake, because,as I mentioned earlier, the facts on record would show ## Crl.R.P.No.1127/2002 --9-- that mini lorry had run over a distance of 100 mtrs. despite of the hitting on the gate of Mosque, coconut tree and telephone post. Rashness and negligence are apparent. In the light of the evidence on record, I am persuaded to concur with the courts below that there was no mechanical damage to the vehicle before the accident, and the accident cannot be attributed due to the mechanical defect .In the above circumstance , I find that the courts below have rightly arrived at concurrent finding regarding rash and negligence. The conviction under challenge requires no interference. 7. Regarding the sentence the learned counsel has canvassed my attention to the decision in _**Manish Jalan vs. State of Karnataka ,(2008 3 KLT 390) and in Paul George vs. National Capital, New Delhi, (2008(4)SCC 185) .**_ In _**Manish Jalan's**_ case, the Apex court had reduced the sentence to one already undergone with a compensation of Rs.1,00,000/- to the ## Crl.R.P.No.1127/2002 --10-- relatives of the victim. What was the period of detention already undergone is not at all revealed by the judgment. Here in this case, there is no case that the revision petitioner has undergone any under trial imprisonment. In _**Paul George's**_ case. (supra) the accused was a police personnel. Taking note of the fact that there was no subsequent allegation for about 20 years, the Apex Court released the accused under Section 4 of the Probation of the Offenders Act. The learned counsel, supported by the above decisions, canvassed for modification of the sentence . Learned counsel had also produced a scan report stating to be that of the baby of the revision petitioner when it was only 25 days, and submitted that the child had congenital heart disease. However, though the subsequent treatment records are not produced, on that plea also, the learned counsel had sought for leniency in sentence. The revision petitioner was alleged to be 24 years as on the date of accident. He might be in his initial stage of driving. Taking ## Crl.R.P.No.1127/2002 --11-- note of the speed at which the vehicle was driven, the manner in which the accident occurred mainly that the victims who were walking along the side of the road were ran over their head smashing even the brain matters, I am of the opinion that this is not a fit case for invoking the provisions of the Probation of Offenders Act. However, taking note that the child of the revision petitioner is having congenital heart disease , I am of the opinion that the substantive sentence can be reduced to one for 6 months. 8. In the result , the revision petitioner is allowed in part. While confirming the conviction, substantive sentence impugned is reduced to simple imprisonment for 6 months. In all other respects, the judgment impugned would stand confirmed. The trial court shall see the execution of sentence and report compliance. **MM** **JUDGE**