High Court Kerala High Court

Kuttan vs State Of Kerala on 25 June, 2010

Kerala High Court
Kuttan vs State Of Kerala on 25 June, 2010
       

  

  

 
 
  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
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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.