Varkey v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 30TH DAY OF OCTOBER 2014/8TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1790 of 2003 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA 414/2001 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO I, THRISSUR DATED 27-06-2003.** **AGAINST THE JUDGMENT IN ST 3207/1994 of J.M.F.C, CHALAKUDY DATED 25-07-2001** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------------------------------------** **VARKEY, S/O KURIAN, CHAKKATHMOODA HOUSE, EDALAKKAD DESOM, MOOKKANNOOR VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS.SRI.WILSON URMESE SRI.MARTIN PAUL.** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT :** **--------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING SUB INSPECTOR OF POLICE, KORATTY.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.Rev.Pet. No.1790 of 2003** **-----------------------------------------------Dated this the 30[th] day of October, 2014.** ## **O R D E R** Petitioner is the accused in S.T No.3207/1994 on the file of Judicial First Class Magistrate Court, Chalakudy charged with offences punishable under Sections 279, 337, 338 and 304A I.P.C. After an elaborate trial, the learned Magistrate convicted the accused for offences under Sections 279, 338 and 304A I.P.C and imposed imprisonment. Aggrieved by the convictions and sentences, the revision petitioner approached the Sessions Court, Thrissur with a Criminal Appeal No.414/2001. Learned Additional Sessions Judge considered the matter afresh and found that the appeal was devoid of any merit. Hence, it was dismissed. Feeling aggrieved, the revision petitioner has come up in revision. 2. Heard Sri.Wilson Urmese the learned counsel for the revision petitioner and Sri.K.K.Rajeev the learned Public Prosecutor. **Crl.Rev.Pet. No.1790 of 2003 2** 3. I have carefully perused the records and the judgments of the courts below. Learned counsel for the petitioner submitted that the courts below wrongly appreciated the evidence to find that the petitioner was guilty of the aforementioned offences. According to him, wrong appreciation of evidence resulted in miscarriage of justice. It has to be borne in mind that in the revisional jurisdiction what is to be decided is the legality, correctness and propriety of the sentence or order passed by the courts below. It is well settled that the revisional jurisdiction is not a second appellate jurisdiction and it is only a supervisory jurisdiction. 4. To find out whether there is any illegality in the proceedings, I have gone through the evidence. PW1 is the person, who gave Ext.P1 First Information Statement, wherein the negligence on the part of the petitioner is specifically spelt out. At the time of his examination, he completely supported the prosecution case that the petitioner was responsible for causing **Crl.Rev.Pet. No.1790 of 2003 3** the accident by his rash and negligent driving of a tipper lorry through a public road. Prosecution case revealed through Ext.P1 and the oral evidence of witnesses is that on 25-05-1994 at about 1.15 p.m, the lorry driven by the petitioner which was proceeding from Thrissur side to Ernakulam side collided with a tempo van which came from the opposite direction. Two persons died in the accident and various persons sustained injuries. In the evidence of PW1, he has clearly stated that the petitioner was responsible for causing the accident and this aspect has not been challenged effectively in cross examination. Similarly, other injured witnesses also stated that the accident was due to rash and negligent driving of the petitioner. I have gone through the scene mahazar. It shows that clear visibility for 150 metres to both sides from the accident spot was available. The road at the place of occurrence lies in north-south direction with 7 metre wide tarred portion. On both sides, 1.6 metre wide road margins were available. As per the scene mahazar, the accident was 2.58 **Crl.Rev.Pet. No.1790 of 2003 4** metres east from the southern tar end. The lorry driven by the petitioner was supposed to pass through the eastern side from the middle portion of the road. The place of occurrence indicates that the lorry was on the wrong side of the road. Further the right side of the lorry was damaged in the collision. This document is not challenged effectively. The material documents produced by the prosecution and relied on by the courts below coupled with oral evidence clearly show that the conviction of the petitioner under the aforementioned sections is perfectly legal. There is no illegality or impropriety in the findings of the courts below. 5. It is stated in _**Kuriakose v. State (1993(2) K.L.T 292)**_ that severity of rashness, degree of callousness as well as seriousness of the consequence which follow an accident are matters to be taken into account while deciding the quantum of sentence. The ratio reads as follows : _“If drivers of vehicles - heavy vehicles or_ **Crl.Rev.Pet. No.1790 of 2003 5** _light vehicles - get the impression that the worst consequence which visits them on account of rash driving is only that they will have to pay some amount of fine, that impression would considerably dilute the element of deference in them. In the present situation, when vehicular traffic is registering galloping growth, the weakening of deterant clement will make the class of drivers inalert to the imperative need to lake proper care and circumspection. This is an aspect to be seriously borne in mind by the Magistrates while deciding the quantum of sentence for the offence under S.304A IPC’. While exercising the discretion in fixing the extant of the sentence, the severity of rashness,the degree of callousness as well as the seriousness of the consequences which followed are matters to be taken into account by courts. By the addition of sub-section (4) in S.354 of the Code, the law now provides that when_ **Crl.Rev.Pet. No.1790 of 2003 6** _a court imposes a sentence of imprisonment for a term less than three months for an offence punishable with imprisonment for a term of one year or more, the court shall record its’ reasons for awarding such sentence. The said new provision indicates the concern of the Parliament in noticing too much of leniency shown by courts while awarding sentences in exercise of their discretion. Now it is made clear that sentence of imprisonment shall be the rule and sentence of fine would only the exception for such offences. When the Parliament inserted the said sub-section, certainly the Parliament would have borne in mind that the sentence prescribed for the offence under S.304A IPC is imprisonment which may go upto two years or fine or both.”_ 6. For the aforementioned reasons, I find that the courts below convicted the petitioner for proper and valid reasons. **Crl.Rev.Pet. No.1790 of 2003 7** 7. Learned counsel for the petitioner submitted that at the time of the accident, the petitioner was about 50 years. Now, he is about 70 years old. Therefore, the learned counsel seeks leniency in the matter of punishment. I have carefully gone through the sentence imposed by the court below under three counts of convictions. The courts below have only imposed three moths imprisonment for an offence under Section 304A I.P.C, that too simple imprisonment. I find no reason to interfere with the sentence. In the result, the revision petition is dismissed. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge