IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 62 of 2003()
1. KUTTAN, AGED 43, S/O.KUNJUPENNU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
---------------------------------------------
CRL.R.P.NO.62 OF 2003
---------------------------------------------
Dated 24th June, 2010
O R D E R
Petitioner, the accused in C.C.592/1998 on the file of Judicial First
Class Magistrate-I, Kottayam was convicted
and sentenced to simple imprisonment for
six months for the offenceS under Section
304 A of Indian Penal Code, for simple
imprisonment for two months for the offence
under Section 279 and simple imprisonment
for one month for the offence under Section
337 of Indian Penal Code. He was
disqualified to drive the vehicle for six
months under Section 20 of Motor Vehicles
Act. All the substantive sentences were
directed to be run currently. Petitioner
challenged the conviction and sentence
CRRP 62/03
2
before Additional Sessions court, Kottayam in
Crl.A.69/2001. Learned Additional Sessions
Judge on re-appreciation of evidence confirmed
the conviction and sentence and dismissed the
appeal. It is challenged in the revision.
2. Learned counsel appearing for the
petitioner and Learned Public Prosecutor were
heard.
3. Argument of the learned counsel is
that identity of the petitioner as the driver
of the lorry involved in the accident was not
established. Argument is that none of the
witnesses including PW11 who was examined to
prove that he is the owner of the lorry,
KL-13-A.16, involved in the incident identify
the petitioner as the driver and in such
circumstances, conviction of the petitioner is
unsustainable. Learned counsel appearing for
CRRP 62/03
3
the petitioner also argued that there is no
evidence to prove that the lorry was driven so
as to endanger human life or by such driving
of the lorry hit on the jeep and caused death
of one of the passengers and injury to the
driver of the jeep and in such circumstances,
the conviction is not sustainable.
4. Learned Public Prosecutor submitted
that both the trial court and the appellate
court considered the evidence in detail and it
is established that the incident occurred 1.48
meters to the south of the northern road
margin and road is lying east-west and lorry
was proceeding from east to west and jeep was
driving from west to east and the proper side
of the lorry was on the southern side and fact
that the lorry hit on the jeep 1.48 meters from
the northern tarred end establishes that it was
CRRP 62/03
4
proceeding along the wrong side. It is pointed
out that evidence of PW3 the driver of the jeep
establishes that the lorry overtook a bus
negligently and thereafter hit on the jeep and
in such circumstances, it is conclusively
proved that the incident occurred only due to
the rash and negligent driving of the lorry.
Learned Public Prosecutor pointed out that
though witnesses did not identify the
petitioner as the driver, PW.13 investigating
officer has sent notice to PW11 owner of the
lorry to furnish details of the driver which
he is bound to maintain under Rule 350 of
Kerala Motor Vehicles Rule, 1989 and Ext.P8
reply was sent stating that petitioner was
driving the lorry and in such circumstances,
his conviction is perfectly legal.
5. Ext.P2 scene mahazar establishes
CRRP 62/03
5
that the road at the scene of occurrence is
lying east-west and is having width of 6.48
meters. The lorry hit on the jeep 1.48 meters
to the south of the northern tarred end. Lorry
was proceeding from east-west and jeep
proceeding from west to east. It is thus clear
that lorry hit on the jeep on the proper side
of the jeep, which was proceeding from west to
east but on the wrong side of the lorry. Though
the evidence of PWs.1 and 2 do not establish
that cause of the incident is the negligent
driving of the lorry, evidence of PW3 the
driver of the jeep establishes that, at the
scene of occurrence the lorry overtook a bus
and thereafter hit on the jeep causing death
of one of the passengers and injury to PW3.
On the evidence, courts below rightly found
that the lorry hit on the bus only due to rash
CRRP 62/03
6
and negligent driving of the lorry by its
driver.
6. Fact that one of the passengers
died due to injuries sustained is not disputed
at the time of evidence Ext.P15 postmortem
certificate with the evidence of PW14 the
Assistant Professor of Forensic Medicine who
conducted the autopsy establishes that fact.
Evidence of PW8, with Exts.P4 and P5 wound
certificates with the evidence of PWs.1 and 2
establish that they sustained injuries in the
incident. Therefore, it is established that
due to the rash and negligent driving of the
lorry by the petitioner it hit on the jeep and
caused the death of one of the passengers of
the jeep and also voluntarily caused hurt to
PWs.1 and 2.
7. Then the question is regarding the
CRRP 62/03
7
identity of driver of the lorry. Argument of
the learned counsel is that as none of the
witnesses identified petitioner as the driver
of the lorry the conviction is unsustainable.
Learned Magistrate and learned Sessions Judge
relied on Ext.P8, the details furnished by
PW11, in answer to Ext.P7 notice directing
him to furnish the details of driver who was
driving the lorry, on the date and time of the
incident and also Ext.P12 GVR of the lorry
seized under Ext.P11 mahazar. Evidence of PW13
established that he sent Ext.P7 notice to the
registered owner of the lorry. PW11 on receipt
of the notice, sent Ext.P8 reply disclosing the
details of the driver. Ext.P11 mahazar, with
the evidence of PW13 establishes that under
Ext.P11, Ext.P12 GVR of the lorry was seized by
the investigating officer. Exts.P8 and P12 show
CRRP 62/03
8
that the lorry was driven by Kutan. Though in
Ext.P12 details of Kuttan is not mentioned,
Ext.P8 reply contained the entire details.
Argument of the learned counsel is that based
on Ext.P8 alone identity cannot be fixed as
Kuttan therein is shown as son of Sankaran and
the petitioner is the son of Kunjupennu.
Argument, at first blush appears attractive.
But when the plea of the petitioner was
recorded by the Magistrate, he has disclosed
his profession as driver and that he is son of
Sankaran. Therefore, there is absolutely no
doubt with regard to identity of the petitioner
for showing the name of his mother in the
final report and name of the father in the
other records. Kuttan shown in Ext.P12 as
well as in Ext.P8 reply furnished by PW11 is
the petitioner. In such circumstances, I find
CRRP 62/03
9
no illegality or irregularity in the finding
of the learned Magistrate and the learned
Sessions Judge that petitioner was driving the
lorry at the relevant day and time. In such
circumstances, conviction of the petitioner for
the offence under Sections 304 A and 337 of
Indian Penal Code is perfectly legal and
warrants no interference.
8. Then the only question is regarding
the sentence. Argument of the learned counsel
is that considering the fact that petitioner
was not involved in any other offence and the
incident was in 1997, at this distant point of
time, petitioner may not be sent to prison. It
was submitted that threat of imprisonment was
hanging over the head of the petitioner for
more than a decade and in such circumstances,
leniency may be shown.
CRRP 62/03
10
9. Offence under Section 304A warrants
a proper sentence. Fact that petitioner was
succeeded in protracting the trial, appeal and
revision is not a ground to interfere with the
sentence on the ground that threat of the
sentence was hanging over the head of the
accused. But considering the entire facts and
circumstances of the case, interest of justice
will be met, if the sentence for the offence
under Section 304 of Indian Penal Code is
reduced to simple imprisonment for three months
and maintaining the sentence for the offence
under Sections 279 and 337 of Indian Penal
Code, in view of the fact that all the
sentences are concurrent.
Revision is allowed in part. Conviction
for the offence under Sections 304 A, 279 and
337 of Indian Penal Code is confirmed. Sentence
CRRP 62/03
11
for the offence under Section 337 and 279 of
Indian Penal Code is confirmed. Sentence for
the offence under Section 304 A is modified to
simple imprisonment for three months. He is
entitled to set off under Section 428 of Code
of Criminal Procedure . Petitioner is directed
to appear before the Judicial First Class
Magistrate-I, Kottayam on 28/7/2010. Judicial
First Class Magistrate is directed to execute
the sentence.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.