Kerala High Court
Sageer vs State Of Kerala on 16 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1789/2013
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2025:KER:42716
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.REV.PET NO. 1789 OF 2013
AGAINST THE JUDGMENT DATED 10.06.2013 IN Crl.A NO.416
OF 2011 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA
ARISING OUT OF THE JUDGMENT DATED 11.07.2011 IN CC NO.839 OF
2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY
REVISION PETITIONER/APPELLANT/ACCUSED:
SAGEER
AGED 34 YEARS
S/O.SAITHU,MANAPARAMBIL HOUSE,VYPPIN
KARA,NJARAKKAL VILLAGE,ERNAKULAM DISTRICT.
BY ADV SRI.T.N.SURESH
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031.
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.1789/2013
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2025:KER:42716
ORDER
This revision petition has been directed against the judgment in Crl.A No.416/2011 dated 10.06.2013 on the files of the Additional District & Sessions Court, Muvattupuzha (for short 'the appellate court') as well as the judgment in C.C.No.839/2005 on the files of the Judicial First Class Magistrate Court, Kolencherry (for short 'the trial court') dated 11.07.2011.
2. The petitioner is the accused. He faced trial for the offences punishable under Sections 279 & 304A of IPC.
3. The prosecution case, in short, is that on 10.08.2005 at about 08.10 a.m., the petitioner drove mini lorry bearing registration No.KL-7/AD 5971 through Muvattupuzha- Ernakulam National Highway from east to west rashly, negligently and at an excessive speed so as to endanger human life and it hit against the motorcycle bearing registration No.KL-4/K 3644 ridden by Sri.Sisil Mathew from the opposite direction of the road at Nambiarupady Bagam. As a result of the accident, Sri.Sisil Mathew had sustained fatal injuries and he succumbed to the injuries at 08.30 a.m., on 15.08.2005 while undergoing treatment at the hospital.
4. The petitioner pleaded not guilty. Before the trial Crl.R.P.No.1789/2013 3 2025:KER:42716 court, PWs 1 to 9 were examined and Exts.P1 to P8 were marked on the side of the prosecution. No defence evidence was adduced. After trial, the trial court found the petitioner guilty under Sections 279 & 304A of IPC and he was convicted for the said offences. He was sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 279 of IPC and he was sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304A of IPC. The petitioner preferred appeal before the appellate court challenging the conviction and sentence. The appellate court confirmed the conviction and modified the sentence under Section 304A of IPC to simple imprisonment for a period of six months. This revision petition has been filed challenging the conviction and sentence passed by the trial court as well as the appellate court.
5. I have heard Sri.T.N.Suresh, the learned counsel for the revision petitioner and Sri. Sangeetha Raj N.R., the learned Public Prosecutor.
6. The learned counsel for the petitioner submitted that both the trial court as well as the appellate court went wrong in convicting the petitioner based on the solitary evidence of PW1. The learned counsel further submitted that identification of the petitioner has not been properly proved. The learned counsel also Crl.R.P.No.1789/2013 4 2025:KER:42716 submitted that Ext.P1 scene mahazar has not been proved in accordance with law. On the other hand, the learned Prosecutor submitted that both the courts, on appreciation of the evidence, found that the petitioner drove the vehicle rashly and negligently and hit against the motorcycle ridden by the deceased. The learned Prosecutor submitted that this Court while exercising its revisionary jurisdiction is not supposed to re-appreciate the evidence.
7. PW1 is the sole eyewitness. He was proceeding from Muvattupuzha to Ernakulam in his car. He deposed that he was driving just behind the motorcycle ridden by the deceased. He clearly deposed that he saw the accident. His evidence shows that the petitioner drove the lorry at an excessive speed through Muvattupuzha-Ernakulam National Highway and hit against the motorcycle ridden by the deceased, which came from the opposite direction. He identified the petitioner as the driver of the mini lorry at the time of the accident. The learned counsel for the petitioner submitted that in the statement given by the PW1 before the police under Section 161 of Cr.P.C, he did not give any identification marks or features of the petitioner to identify him. The learned counsel further submitted that in the 161 statement, PW1 did not state that he had previous acquaintance with the Crl.R.P.No.1789/2013 5 2025:KER:42716 petitioner. According to the counsel, in these circumstances, the evidence of PW1, which was adduced after a considerable period of time regarding the identification of the petitioner, cannot be relied on. The learned counsel relied on the decision of this Court in Palliyalil Sidique v. State of Kerala [2013 (3) KHC 302] in support of his submission. It was held that in a case where an occurrence witness omitted to say about the identity of the driver in his 161 statement given to the police, the statement regarding identity of the driver, for the first time, given before the court cannot be relied on. But, a perusal of the evidence of PW1 would show that his 161 statement not confronted to him. In short, the statement given by him under Section 161 of Cr.P.C was not contradicted. Hence, the contention raised by the learned counsel for the petitioner that in the 161 statement given by PW1, he did not disclose about the physical features or identification mark of the petitioner or his acquaintance with the petitioner cannot be accepted at all. As stated already, PW1 has clearly stated about the accident, identity of the petitioner and also the negligence on the part of the petitioner. A reading of the cross examination would show that those specific evidence have not been seriously challenged during cross examination.
8. Ext.P1 is scene mahazar. PW9 is the Crl.R.P.No.1789/2013 6 2025:KER:42716 investigating officer who prepared the same. PW6 is the attesting witness to Ext.P1 scene mahazar. Ext.P1 was marked through PW6. PW9 also deposed about Ext.P1. As per the description in Ext.P1, the place of incident is on the northern side of the national highway i.e., the extreme wrong side of the lorry driver and the correct side of the motorcyclist is the direction from the northern tar end of the national highway, which has a total width of 9.10 meters. Since the road at the place of incident is having the total width of 9.10 meters, the lorry driver could have proceeded further without hitting against the motorcycle driven from the opposite direction through the northern side of the vehicle. A perusal of Ext.P1 mahazar would reveal that the lorry was lying on the northern side of the road margin. The description in the mahazar would further show that some damage has sustained to the front bumper and bonnet of the lorry and extensive damage had sustained to the motorcycle involved in the accident. The learned counsel for the petitioner submitted that the contents in Ext.P1 scene mahazar cannot be relied on since PW6 did not support it. The learned counsel relied on the decision of the single bench of this Court in Mohanan v. State of Kerala [2011 (3) KHC 680] wherein it was held that mere marking of the scene mahazar will not prove the existence or truth of the facts referred Crl.R.P.No.1789/2013 7 2025:KER:42716 to in the scene mahazar and the facts disclosed from the contents of the said documents have to be proved in accordance with law by adducing evidence which is admissible in law. Even though PW6, the attesting witness to Ext.P1, did not support the prosecution, PW9, the investigating officer who prepared Ext.P1 has been examined. When PW9 was examined, the petitioner did not challenge Ext.P1 or its contents at all. Hence, the contents in Ext.P1 scene mahazar can be safely relied on to corroborate the evidence of PW1.
9. The learned counsel next submitted that the prosecution did not produce the trip sheet, as mandated under Section 224 of the Motor Vehicles Rules, to prove that the petitioner drove the vehicle at the time of the accident. I cannot subscribe to the said argument for the simple reason that the petitioner did not dispute at all that he did not drive the vehicle. He had no case in the trial court as well as the appellate court, that he did not drive the vehicle at the time of the accident.
10. It is well settled that the revisional jurisdiction under Sections 397 and 401 Cr.P.C was to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper Crl.R.P.No.1789/2013 8 2025:KER:42716 precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. While exercising the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure, the court is required to find out if there is any illegality or impropriety in the findings of the trial court and the appellate court warranting interference and it is not open to the High Court to exercise the revisional power as the second appellate forum. In Shlok Bhardwaj v. Runika Bhardwarj and others [(2015) 2 SCC 721), the Supreme Court held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. Since there are concurrent findings of the trial court as well as the appellate court, this Court would be circumspect in invoking the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure. It is only if the decision rendered by the appellate court and the trial court can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers.
11. I have carefully gone through the entire records, evidence, proceedings and the judgments of the trial court as well as the appellate court. I find no impropriety or illegality therein Crl.R.P.No.1789/2013 9 2025:KER:42716 warranting interference under the exercise of revisional powers vested with the court.
12. The learned counsel for the petitioner submitted that the petitioner is the only bread winner of his family consisting of wife, children and aged parents. The counsel further submitted that the petitioner has been undergoing the ordeal of trial for the last more than twelve years and hence the benefit of the Probation of Offenders Act, 1958 (for short PO Act) may be extended to him. In view of the said submission, a report has been called for from the District Probation Officer, Ernakulam. A detailed report has been filed.
13. The PO Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The PO Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in S.3 and S.4 of the said Act. S.3 of the PO Act confers power on the Court to release certain offenders after admonition. S.4 of the PO Act deals with the power of Court to release certain offenders on probation on good conduct. S.5 of Crl.R.P.No.1789/2013 10 2025:KER:42716 the Act empowers the Court to direct payment of compensation and costs in the event of invoking S.3 or S.4 of the Act. S.6 of the PO Act stipulates restrictions on imprisonment of offenders under twenty one years of age. As per S.11 of the PO Act, powers as provided under S.3, S.4 and S.5 of the Act can be exercised by the Appellate or Revisional Court as well.
14. S.3 of the PO Act for release after due admonition is evidently not applicable in the nature of the offences. The accused being above 21 years of age, S.6 also is not applicable. S.4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court instead of sentencing him at once to any punishment may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. The Court before passing the order of release on probation may also call Crl.R.P.No.1789/2013 11 2025:KER:42716 report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.
15. In Dalbir Singh V. State of Haryana and Others (AIR 2000 SC 1677) the Apex Court has held that a convict can be released on probation only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. It was further held that though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. Explaining the word "expedient", the Court held thus "Here the word 'expedient' is used in S.4 of the PO Act in the context of casting a duty on the court to take into account 'the circumstances of the case including the nature of the offence'. This means S.4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of Crl.R.P.No.1789/2013 12 2025:KER:42716 good conduct". In Satyabhan Kishore v. State of Bihar (AIR 1972 SC 1554), the District Probation Officer in his report made no recommendation in favour of the accused and made no adverse remark also. Still the Court expressed the view that in the light of the laudable reformatory object which the legislature was seeking to achieve, the provisions will have to be applied. In Arvind Mohan Sinha v. Amulya Kumar Biswas and Others (1974 SCC (Cri) 391), the offences involved were those under the Customs Act and Gold Control Rules having impact on the economy of the country. Still in the circumstances of that case, the court found that the PO Act is applicable. In Rattan Lal v. State of Punjab (AIR 1965 SC 444), the provisions of the PO Act was applied even in a case where the Act was not in force at the time of the commission of offence and in spite of the fact that the trial court and the appellate court did not apply the provisions. In Chhanni v. State of U.P. [(2006) 5 SCC 396], it was held that the scope of S.4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. In Ishar Das v. State of Punjab [1973 (2) SCC 65], it was held that the provisions of the said Act are beneficial provisions and, therefore, they should receive wide interpretation and should not be read in Crl.R.P.No.1789/2013 13 2025:KER:42716 a restricted sense. In Mohd. Hashim v. State of UP and Others (2016 KHC 6883), it was held that the Court before exercising the power under S.4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under S.4 of the PO Act. A Single Bench of this Court in Saji Charivukala Puthenveedu v. State of Kerala [2023 (7) KHC 381] has held that though release of offenders by invoking powers under S.4 of PO Act is rarely resorted by courts when the offence involved is one under S.279 and S.304A of the IPC, in an appropriate case, where litigation has been pending for long and conduct of the accused is not tainted by the involvement in any other similar offence either prior to the accident, or during the long period of court proceedings, there is no bar for invoking S.4 of PO Act.
16. Thus, the law is settled that beneficial provisions of the PO Act have to be extended liberally in all suitable cases taking into consideration the nature of the offence, age, character and antecedents of the convict and the circumstances under which the crime was committed.
17. The report filed by the District Probation Officer would disclose that the petitioner is a family man who takes care of his dependents. His wife, two school going children and his aged parents are dependent on him. He is regular at his work and Crl.R.P.No.1789/2013 14 2025:KER:42716 maintains good social relations. It is also reported that he is not engaged in driving for the past ten years and unlikely to commit a similar offence in the future. He hails from a socio-economic and culturally deprived coastal community and possesses low education. He is seen as a mature and law abiding person and is understandable in nature. He is not involved in any other crime. The Probation Officer recommended to give him the benefit of the provisions of S.4(1) and (3) of the PO Act. Considering the fact that the petitioner is a first time offender, that he has a family dependent on him, that he is not involved in any similar offence and that he has been undergoing the ordeal of trial for these years, I am of the view that this is a fit case where S. 4(1) of the PO Act could be extended to the petitioner.
18. S.5 of the PO Act empowers the Court to direct payment of compensation and costs to the victim in the event of invoking S.3 or S.4 of the PO Act. S.11(1) of the PO Act empowers the appellate court to pass an order regarding the payment of compensation as mentioned in S.5(1). S.5 is an important provision. While extending the benefit of S.3 or S.4, the court has to exercise the power u/s 5 liberally to compensate the victim for the loss or injury sustained by him/her as well as the cost of the proceedings incurred by him/her and, thus, to meet Crl.R.P.No.1789/2013 15 2025:KER:42716 the ends of justice in a better way. The compensation must, however be reasonable. As already stated, the victim had sustained fatal injuries and succumbed to the injuries while undergoing treatment at the hospital. Hence, I am of the view that it is a fit case to award compensation to his legal heir. The counsel also fairly conceded that adequate and reasonable compensation can be awarded to the legal heir of the deceased victim. Considering the facts and circumstances of the case, I am of the view that Rs.1,00,000/- (Rupees one lakh only) can be fixed as compensation.
19. In the light of the above findings, the conviction and sentence passed by the trial court as well as the appellate court under Sections 279 and 304A of the IPC are set aside. The petitioner/accused is found guilty for the offence punishable under Sections 279 and 304A of the IPC and he is convicted for the said offence. The petitioner/accused shall be released u/s 4(3) of the PO Act, and instead of sentencing him at present, he shall be released on his entering into a bond for ₹1,00,000/- (Rupees One lakh only) at the trial court with two solvent sureties to the satisfaction of that Court, to appear and receive the sentence of the said offences, when called upon during the period of three years from the date of release and in the meantime, to keep the Crl.R.P.No.1789/2013 16 2025:KER:42716 peace and be of good behaviour. In addition to the condition for appearance at the Court for receiving sentence, the bond shall contain conditions for observing peace and good behaviour, appearance of the accused before the District Probation Officer, Ernakulam on the first week of every month and intimation of change of address to the said officer. The accused shall appear before the learned Magistrate within 60 days from today. The District Probation Officer, Ernakulam shall have supervision over the accused for a period of three years and he shall make a report once in every three months to the trial court about the conduct of the offender. The petitioner/accused is further directed u/s 5 of the PO Act to pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to the legal heir of the deceased victim within two months from today. The Registry is directed to forward a copy of this order to the District Probation Officer, Ernakulam.
The revision petition is disposed of as above.
sd/-
DR. KAUSER EDAPPAGATH JUDGE kp