{"id":19450,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/martin-vs-state-of-kerala-rep-by-the-on-16-october-2009"},"modified":"2016-06-14T05:36:25","modified_gmt":"2016-06-14T00:06:25","slug":"martin-vs-state-of-kerala-rep-by-the-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/martin-vs-state-of-kerala-rep-by-the-on-16-october-2009","title":{"rendered":"Martin vs State Of Kerala (Rep.By The on 16 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Martin vs State Of Kerala (Rep.By The on 16 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 3233 of 2009()\n\n\n1. MARTIN, S\/O.SEBASTIAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA (REP.BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.C.ANILKUMAR (KALLESSERIL)\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice P.S.GOPINATHAN\n\n Dated :16\/10\/2009\n\n O R D E R\n                       P.S. GOPINATHAN, J.\n                        ------------------------------\n                    CRL.R.P.NO. 3233 OF 2009\n                    --------------------------------------\n         DATED THIS THE 16TH DAY OF OCTOBER 2009\n\n                                O R D E R\n<\/pre>\n
      The revision petitioner is the accused in C.C No.1885 of<\/p>\n
2002 on the file of the Judicial Magistrate of First Class-II,<\/p>\n
Ernakulam. In Crime No.2006 of 2002, the Sub Inspector of<\/p>\n
Police, Kochi City Traffic Police Station filed a chargesheet<\/p>\n
against the revision petitioner alleging offence u\/s. 279, 337 and<\/p>\n
304(A) of I.P.C with an allegation that on 3-7-2002 at 9.30 a.m. the<\/p>\n
revision petitioner drove a stage carriage bus bearing registration<\/p>\n
No. KL-8\/F-7891 from South to north along Ernakulm-Chittoor<\/p>\n
road in a rash and negligent manner so as to endanger human life<\/p>\n
and on the north of the of Vaduthala railway gate junction it hit<\/p>\n
against a Kinetic Honda Scooter bearing registration No.KL-7\/H-<\/p>\n
4257 ridden by late Saseendran with his wife on the pillion and as<\/p>\n
a result Saseendran sustained serious injuries to which he<\/p>\n
succumbed. It was alleged that due to the hit, an angle iron of the<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                  2<\/span><\/p>\n
bus fitted at the right side hit at the chest of Saseendran and he<\/p>\n
sustained injury which caused the death. The wife of the deceased<\/p>\n
Saseendran was examined as PW1.           She had also sustained<\/p>\n
injuries. The law was put in motion by PW2, who gave Ext.P1<\/p>\n
First Information    statement.    PW5, Head constable recorded<\/p>\n
Ext.P1 given by PW2 and registered a case. The investigation was<\/p>\n
taken over by PW10, the Inspector of Police. He after completing<\/p>\n
the investigation laid the chargesheet before the trial court.<\/p>\n
      2.   The learned Magistrate took cognizance and         issued<\/p>\n
process. The revision petitioner appeared before the learned<\/p>\n
Magistrate in response to the summons. The particulars of the<\/p>\n
charge was read over and explained after furnishing the copy of<\/p>\n
the chargesheet and connected records. He pleaded not guilty.<\/p>\n
Hence he was sent for trial. On the side of the prosecution PWs 1<\/p>\n
to 11 were examined and Exts.P1 to P8 and Mo1 were marked.<\/p>\n
After closing the evidence for prosecution the revision petitioner<\/p>\n
was questioned u\/s.313 of the Cr.PC.            He denied all the<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                  3<\/span><\/p>\n
incriminating evidence. No defence evidence was adduced. The<\/p>\n
learned Magistrate on appraisal of the evidence arrived a finding<\/p>\n
that the revision petitioner is guilty for offence u\/s. 279, 337 and<\/p>\n
304(A) of I.P.C. Accordingly he was convicted and sentenced to<\/p>\n
simple imprisonment for three months and a fine of Rs. 1,000\/-<\/p>\n
with a default sentence of simple imprisonment for one month for<\/p>\n
offence u\/s. 279 of the I.P.C.       For offence u\/s. 337 he was<\/p>\n
sentenced to simple imprisonment for one month and for offence<\/p>\n
u\/s.304 A IPC he was sentenced to simple imprisonment for two<\/p>\n
years and a fine of    Rs. 5,000\/- with a default sentence of simple<\/p>\n
imprisonment for a further period of one month. The substantive<\/p>\n
sentence were ordered to run concurrently.\n<\/p>\n
      3.   Feeling aggrieved by the above conviction and sentence<\/p>\n
the revision petitioner took up the matter in appeal.        The 4th<\/p>\n
Additional Sessions Judge, Ernakulam by judgment dated<\/p>\n
29-7-2009 in Crl. Appeal No. 48 of 2009 dismissed the appeal<\/p>\n
and confirmed the conviction and sentence.\n<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                  4<\/span><\/p>\n
      4.    Assailing the legality, correctness and propriety of the<\/p>\n
above conviction and sentence as confirmed in appeal, this revision<\/p>\n
petition was filed. I heard the learned counsel for the revision<\/p>\n
petitioner as well as the public prosecutor. The learned counsel for<\/p>\n
the revision petitioner took me through the evidence on record.<\/p>\n
      5.    PW1, the wife of the deceased who was the pillion rider<\/p>\n
deposed that when the deceased was ridding the above vehicle<\/p>\n
along with PW1 on the pillion at 9.30 a.m. on 3-7-2002, the bus<\/p>\n
referred above driven by the revision petitioner hit against the<\/p>\n
scooter and thereby the angle iron of the bus fitted at the right side<\/p>\n
hit on the scooter and pierced at the chest of the deceased as a<\/p>\n
result of which he died. Negligence was attributed against the<\/p>\n
revision petitioner. PW3 and 4 who are neighbouring shop owners<\/p>\n
had also given evidence supporting the evidence adduced by the<\/p>\n
PW1. They had also attributed negligence against the revision<\/p>\n
petitioner. The identity of the revision petitioner as the driver was<\/p>\n
also spoken by the PW3 and 4. The courts below had appreciated<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                   5<\/span><\/p>\n
the evidence of PW1, 3 and 4 and arrived a conclusion that the<\/p>\n
revision petitioner was the driver of the bus at the time of the<\/p>\n
accident. In fact the identity of the revision petitioner as the driver<\/p>\n
of the bus was not disputed by the learned counsel for the revision<\/p>\n
petitioner.  It was also concurrently found that their evidence<\/p>\n
establishes the guilt. I find no reason to disbelieve them. Courts<\/p>\n
below had rightly believed them.\n<\/p>\n
      6.    Ext.P2 is the scene mahazar wherein PW6 is the<\/p>\n
attester. A reading of Ext.P6 scene mahazar would show that at<\/p>\n
that spot, the tar road was having a width of 7 meters and the spot<\/p>\n
of occurrence is shown as 60 cm towards west from the eastern tar<\/p>\n
end. The sport of occurrence would indicate that the revision<\/p>\n
petitioner who was driving the bus from south to north hit against<\/p>\n
the scooter which was ridden in the opposite direction at the<\/p>\n
eastern extremity.     Spot of occurrence would show that the<\/p>\n
deceased had not contributed any negligence.            The revision<\/p>\n
petitioner had driven to the wrong side, that too to the extreme end<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                  6<\/span><\/p>\n
and hit down the scooter. Spot of occurrence also supports the<\/p>\n
evidence of PW1, 3 and 4.\n<\/p>\n
      7.    According to the learned counsel for the revision<\/p>\n
petitioner the right side rear view mirror of the scooter which has a<\/p>\n
height of 112 cms from the floor, hit on the angle iron fitted on<\/p>\n
the bus which was also at the same height and thus the angle iron<\/p>\n
fitted on the body of the bus might have hit the chest of the<\/p>\n
deceased. The learned counsel for the petitioner also argued that<\/p>\n
the accident occurred because of the negligent riding of the<\/p>\n
deceased and it was the scooter that hit on the bus. In a case where<\/p>\n
two vehicles move in opposite direction and hit against, it cannot<\/p>\n
be ascertained as to which vehicle hit the other. Then what is<\/p>\n
possible is to examine whether the vehicles were keeping their<\/p>\n
side. It is not disputed that if the revision petitioner was keeping<\/p>\n
his side, he would not have driven to the eastern side. He violated<\/p>\n
the rule to keep left . If the road rules are given regard, the<\/p>\n
revision petitioner would not have driven to the wrong side and hit<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                   7<\/span><\/p>\n
against the deceased who was riding through his side.            The<\/p>\n
revision petitioner also argued that the evidence of PW1 would<\/p>\n
show that after hitting, the scooter as well as the riders were<\/p>\n
thrown to a little distance and if the spot of occurrence is shown at<\/p>\n
the place where the scooter and riders fell down, the spot where the<\/p>\n
vehicles hit as reported in Ext.P2 is not correct. Having gone<\/p>\n
through the evidence of PW6, the attester of Ext.P2 and PW10,<\/p>\n
who prepared the scene mahazer, I find that in fact the accident<\/p>\n
occurred at the eastern side of the road though there may be chance<\/p>\n
of minor variation. The courts below had correctly believed the<\/p>\n
spot of occurrence. Even if it is assumed that the scooter might<\/p>\n
have been thrown to a little distance there is no material to come to<\/p>\n
a conclusion that bus was at its proper side, that is on the western<\/p>\n
side. The learned counsel also pointed out that PW1 had stated<\/p>\n
that a vehicle was kept parked infront of the scooter ridden by the<\/p>\n
deceased. According to the learned counsel, since there is no case<\/p>\n
that the bus hit on the parking vehicle, it is an indication that the<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                   8<\/span><\/p>\n
accident might not be as alleged by the prosecution, but it might<\/p>\n
be due to the scooter hitting on the bus. That argument is also<\/p>\n
devoid of any merit. There is nothing on record to show that the<\/p>\n
vehicle which was parked just ahead of the spot was in the tarred<\/p>\n
road so that bus might hit on that vehicle before it hit on the<\/p>\n
scooter ridden by the deceased. In the above circumstances I find<\/p>\n
that the courts below had correctly determined the spot of<\/p>\n
occurrence at the eastern side of the road. The spot of occurrence<\/p>\n
would clearly indicate the negligence of the revision petitioner.<\/p>\n
      8.    The death of the rider was spoken by PW1. Ext.P5<\/p>\n
inquest report as well as Ext.P9 Post mortem report coupled with<\/p>\n
the evidence of PW11 would show that the rider of the scooter died<\/p>\n
because of the angle iron of the bus which was marked as MO1<\/p>\n
pierced at his chest. The cause of death is not at all disputed. So<\/p>\n
the courts below had correctly arrived a conclusion that the death<\/p>\n
of Saseendran is due to the negligent driving of the bus by the<\/p>\n
revision petitioner. There is little material to come to a conclusion<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                 9<\/span><\/p>\n
that the deceased had contributed any negligence to cause the<\/p>\n
accident.\n<\/p>\n
      9.   Ext.P2 does not disclose any tyre mark in the spot. It<\/p>\n
would indicate that the revision petitioner had not even applied the<\/p>\n
break to avoid the hit on the scooter. If he had been cautious he<\/p>\n
ought to have driven the bus along the left side of the road ie.<\/p>\n
Western side of the road. Even if it is assumed that the scooter was<\/p>\n
driven a little towards the western half of the road, the revision<\/p>\n
petitioner could have avoided the accident by applying the break.<\/p>\n
But there is nothing to show that the revision petitioner applied the<\/p>\n
break. All these materials reveals the negligence on the part of the<\/p>\n
revision petitioner.\n<\/p>\n
      10. Offence u\/s.337 IPC was alleged against the revision<\/p>\n
petitioner with a plea that PW1 also sustained injury. But regarding<\/p>\n
the injury sustained to the PW1, there is no evidence. So the<\/p>\n
offence u\/s.337 is not established. But, offence u\/s. 279 and 304A<\/p>\n
IPC are established. I find no error committed by the courts below<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                  10<\/span><\/p>\n
in arriving at a conclusion of guilty for offence u\/s. 279 and 304A<\/p>\n
IPC. Whereas the revision petitioner is entitled to an order of<\/p>\n
acquittal for offence u\/s.337 of IPC.\n<\/p>\n
      11. According to the learned counsel for the revision<\/p>\n
petitioner the sentence awarded is very harsh and that the lower<\/p>\n
court had given maximum sentence. Though the sentence awarded<\/p>\n
by the trial court and confirmed by the appellate court cannot be<\/p>\n
termed as harsh, taking note of the entire facts and circumstances<\/p>\n
I find that imposition of rigorous imprisonment for 18 months and<\/p>\n
a fine of Rs. 5,000\/- u\/s.304A would meet the ends of justice. No<\/p>\n
separate sentence u\/s.279 is warranted.\n<\/p>\n
       In the result the revision petition is allowed in part. The<\/p>\n
conviction for offence u\/s.279 and 304(A) is confirmed. The<\/p>\n
conviction for offence u\/s.337       IPC is set aside and for that<\/p>\n
offence, the revision petitioner is acquitted. For offence u\/s. 304A<\/p>\n
IPC the revision petitioner shall undergo rigorous imprisonment<\/p>\n
for a period of 18 months and a fine of Rs. 5,000\/-. In default of<\/p>\n
CRL.R.P.NO. 3233 OF 2009
\n                                11<\/span><\/p>\n
payment of fine the revision petitioner shall undergo simple<\/p>\n
imprisonment for a further period of three months. If the fine<\/p>\n
amount is realized, the same shall be paid to PW1 as compensation.<\/p>\n
While setting aside the sentence awarded for offence u\/s.279 IPC,<\/p>\n
there would be no separate sentence for offence u\/s 279 IPC.<\/p>\n
                                            P.S. GOPINATHAN
\n                                                  JUDGE<\/p>\n
pkk<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Martin vs State Of Kerala (Rep.By The on 16 October, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 3233 of 2009() 1. MARTIN, S\/O.SEBASTIAN, … Petitioner Vs 1. STATE OF KERALA (REP.BY THE … Respondent For Petitioner :SRI.C.ANILKUMAR (KALLESSERIL) For Respondent : No Appearance The Hon’ble MR. Justice P.S.GOPINATHAN Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-19450","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMartin vs State Of Kerala (Rep.By The on 16 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/martin-vs-state-of-kerala-rep-by-the-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Martin vs State Of Kerala (Rep.By The on 16 October, 2009 - 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