SHAJI VARGHESE v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935** ## **Crl.Rev.Pet.No. 427 of 2003 ( )** **-----------------------------------------CRL.A 1/1997 of ADDL. SESSIONS COURT,PATHANAMTHITTA. CC.463/1994 of JUDICIAL MAGISTRATE OF FIRST CLASS,RANNI.** **..........** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------------------------------------** **SHAJI VARGHESE, S/O. VARGHESE, VATTAPPARACHAL HOUSE, NEDUMKUNNAM, KOTTAYAM.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDNENT(S)/STATE/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.MADHUBEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.427 of 2003 ---------------------------------------------Dated this the 4[th] day of April, 2013 ## **ORDER** Revision petitioner was convicted by the trial court U/s. 279, 337 and 338 IPC and sentenced to undergo rigorous imprisonment for different periods under the aforesaid sections. The substantive sentences were ordered to run concurrently. An appeal filed was dismissed by the Additional Sessions Court, Pathanamthitta confirming the conviction and sentence passed by the trial court. Challenging the said judgments this criminal revision petition has been preferred. 2. The prosecution allegation is that on 14.3.1994 at 8.10 p.m., the revision petitioner has driven the vehicle in a rash and negligent manner through Erumely-Ranni public road from north to south. When the bus reached at the place of occurrence due to the rash and negligent driving of the bus went out of the road into a canal on the western side and the passengers sustained injuries. Immediately, they removed to Crl. R.P.No427/03 2 hospital. On the basis of the information, Ranni Police registered a crime No.65/1994 and after investigation, Sub Inspector of Police, Ranni laid charge before the First Class Magistrate, Ranni. 3. In the trial court, the prosecution examined PWs 1 to 11 and marked Exts.P1 to P10 in evidence. While cross examination of witnesses, Exts.D1 and D2 were marked. The incriminating circumstances brought out in evidence were denied by the accused, while questioning under Section 313 Cri.P.C. The trial court, after sifting and weighing the evidence on record, convicted the accused and sentenced to undergo rigorous imprisonment for three months for the offence under Section 279 IPC and rigorous imprisonment for one month for the offence under Section 337 IPC and rigorous imprisonment for six months for the offence under Section 338 IPC. The sentences were ordered to be run concurrently. Against that order, he preferred an appeal before the the Sessions Judge, Pathanamthitta. In that appeal, the conviction and sentence passed by the lower court are confirmed. 4. The learned counsel appearing for the revision petitioner contended that there was no rash and negligence Crl. R.P.No427/03 3 driving from the side of the revision petitioner. The speed itself is not the criteria for assessing rash and negligent driving. No evidence has been adduced by the prosecution to prove that the revision petitioner was driving the vehicle in a rash and negligent manner. The only available evidence is oral testimony of PW1 and PW2 and other witnesses were turned hostile and their wound certificates were not marked in the trial court. The only available document is Ext.P7 to prove the injuries of PW4. When rash and negligent driving and injury sustained to the victims are not proved, the revision petitioner is entitled to get the benefit of doubt. 5. The learned Public Prosecutor contended that rash and negligent driving of the revision petitioner was proved through the evidence of PW1 and PW2. Even though, the other prosecution witnesses did not support the prosecution case, the wound certificate of PW4 is sufficient to prove that the victims sustained injury in a rash and negligent act. The evidence of PW1, PW2, PW10 and PW11 are sufficient to confirm the finding passed by the lower court. 6. In this context, I have considered whether there is any illegality or irregularity in the finding recorded by the trial 4 Crl. R.P.No427/03 court? Prosecution examined PW1 and PW2 who are the injureds to prove the accident. The evidence of PW1 shows that on 14.31994, between 7.30 p.m. and 8.00 p.m, he was travelling from Kottayam to Ranni in a vehicle bearing registration No.KL-5-9180 bus. The bus was driven in excessive speed in a rash and negligent manner and when it reached at Mannamaruthi junction, the bus went out of the road and capsized into a small canal, as a result, PW1 and other passengers sustained injuries. He did not see the driver of the bus. Immediately, he was removed to hospital. Ext.P1 is the F.I. Statement given to the Police. In cross examination, he stated that he does not know whether any vehicle was coming from the opposite direction. PW2 is the next injured witness, but, his deposition is not available. PW3 is declared as hostile by the prosecution. According to PW3, the bus was driving in a normal speed. He also sustained injuries. PW4 also was a passenger in the offending vehicle. He sustained injuries to his five teeth. He did not see the driver of the bus. According to him, a jeep was came there from the opposite side in a heavy speed and the accident was only due to the rash and negligent driving of the jeep by that Crl. R.P.No427/03 5 driver. Any how, PW4 did not see the driver of the bus. Analyzing the oral testimony of PWs 1 to 4 it is clear that there is no proper identity of the driver. But, the owner of the vehicle submitted that the revision petitioner was the driver at the time of accident and he submitted Ext.P6(a) reply notice. That itself is sufficient to corroborate the evidence. PW5, who was the AMVI, inspected the vehicle and deposed that there was no mechanical defect to the vehicle. PW6 attested Ext.P3 scene mahazar and PW7 attested Ext.P4 vehicle mahazar. Ext.P6 and Ex t.P6(a) identified by PW8. PW9 recorded Ext.P1 statement of PW1. PW11 completed the investigation and laid charge before the court. I do not find any illegality in the investigation. 7. In order to prove the offence punishable under section 279 IPC, the prosecution has to prove that the revision petitioner was driving the vehicle on a public way in a manner so rash and negligent as to endanger human life or likely to cause death to any person. The evidence of PW1 shows that the vehicle was driven by the revision petitioner in a rash and negligent manner. The speed itself is not the criteria for assessing the rash and negligent driving. The rash and Crl. R.P.No427/03 6 negligent driving of the vehicle amounts to a negligent act, which will attract Section 279 IPC. In order to attract the offence under Section 337 IPC, the prosecution has to prove that the accused caused hurt by doing any act rashly or negligently to endanger human life. Ext.P7 treatment certificate shows that PW4 sustained minor injuries. PW10, the doctor, who treated PW4, produced only the treatment certificate. The original wound certificate was not produced and the allegation of grievous injury was not proved. Hence, I am of opinion that it will attract offence only under Section 337 IPC. Analyzing the evidence of the prosecution, I conclude that the prosecution proved the offence only under sections 279 and 337 IPC, and failed to prove the offence under Section 338 IPC and the accused is to be acquitted thereunder. In the decision of _**Madanlal Ramchandra Daga**_ v. _**The State of Maharashtra**_ [ AIR 1968 SC 1267] held that if the court thinks that a leniency can be shown on facts of case, which may impose lighter sentence. In the result, the conviction passed by the trial court u/s 279 & 337 IPC is confirmed. But, the conviction and sentence passed by the trial court under Section 338 IPC is set aside and he is acquitted thereunder. Hence the Crl. R.P.No427/03 7 revision petitioner is sentenced as follows: a) He is sentenced to imprisonment till rising of the court and to pay a fine of Rs.1000/- u/s 279 IPC, in default simple imprisonment for one month. b) He is also sentenced to pay a fine of Rs.500/- u/s 337 IPC. In default of payment of fine, simple imprisonment for 15 days. c) The revision petitioner is directed to appear before the trial Court on 03.05.2013 (within thirty days) from today to receive the sentence. Accordingly, the revision petition is disposed of. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P.No427/03 8 Crl. R.P.No427/03 9