Kerala High Court
Vazhachalil Saidalavi vs The Sub Inspector Of Police on 11 April, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY,THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935
Crl.Rev.Pet.No. 1982 of 2003 ( )
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AGAINST THE JUDGMENT IN CRL.A.NO. 85/2001 of SESSIONS COURT, MANJERI
DATED 11-04-2003
AGAINST THE JUDGMENT IN C.C.NO. 14/1998 of CHIEF JUDICIAL MAGISTRATE
COURT, MANJERI DATED 05-04-2001
REVISION PETITIONER/APPELLANT/ACCUSED:
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VAZHACHALIL SAIDALAVI,
S/O.MOIDEENKUTTY,
KOTTIYODE,
VIYYAKURUSSI,
MANNADKKAD
BY ADV. SRI.K.SHIBILI NAHA
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
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1. THE SUB INSPECTOR OF POLICE,
MANJERI
2. STATE OF KERALA PRSENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
MJL
K. HARILAL, J.
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Crl.R.P. No.1982 of 2003
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Dated this the 22nd day of October, 2013
ORDER
The Revision Petitioner is the accused in C.C. No.14 of 1998 on the files of the Chief Judicial Magistrate's Court, Manjeri as well as the appellant in Crl.A.No.85 of 2001 on the files of the Sessions Judge, Manjeri. He was prosecuted for the offences punishable under Section 279, 337 and 304 A of the Indian Penal Code. The charge is that at about midnight on 17.12.97, the Revision Petitioner drove a tipper lorry, bearing No.KL-10/C-6433, along Kozhikode-Manjeri road in a rash and negligent manner so as to endanger human life, and at Muttippadi caused the vehicle hit on a motor cycle, bearing No.KL-10/E-5032, that was coming from the opposite side. Due to the result of the hit the motor cyclist succumbed to the injuries suffered by him PWs 3 and 4 who were travelling in the lorry also sustained hurt. After trial the learned Crl.R.P. No.1982 of 2003 2 Magistrate found the Revision Petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months under Section 304 (A) of the IPC and to undergo rigorous imprisonment for a period of six months each under Sections 337 and 279 IPC. The term of sentence shall concurrently and set off also allowed. Though he had preferred the above Criminal Appeal, the appellate court also after re-appreciating the evidence on record confirmed the verdict of guilty, conviction and sentence imposed thereunder as such without any interference. This Revision Petition is filed challenging the concurrent findings of conviction and sentence.
2. The learned counsel for the Revision Petitioner submits that court below miserably failed to appreciate the evidence of PWs 1 and 2 in its correct perspective. Their evidence cannot be relied on to base conviction. According to the counsel for the Revision Petitioner Crl.R.P. No.1982 of 2003 3 there is no evidence to prove that the Revision Petitioner had been driving a tipper lorry in a rash and negligent manner. There is no possibility to get the presence of PWs 1 and 2 at the place of occurrence at that time. The appellate court failed to consider that the prosecution has not established the identity of the Revision Petitioner. It is highly improbable and impossible for PW1 to see the incident as alleged. The court below went wrong by raising much reliance on Ext.P5 scene mahazer.
3. In view of the above contention the question to be considered is whether there is any illegality or impropriety in the impugned judgment confirming the verdict of guilt found by the trial court. Put it differently the question is whether the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. The main challenge is against the identity of the Revision Petitioner as driver of the vehicle at the time of the accident and the reliability of the evidence of Pws 1 and 2. Going by the evidence in Crl.R.P. No.1982 of 2003 4 impugned judgment it could be seen that PW1, the 1st informant testified that the accident occurred in front of his house at the relevant time he found the lorry coming from Manjeri side towards Kozhikode side. That lorry hit the motor cyclist who was coming from the opposite side. He saw the lorry hitting the motor cycle and thereafter, the lorry driver getting down from the lorry and escaping from the scene in a jeep that came there. He identified the appellant as the driver of the lorry at trial while he was in the dock. Further he claimed that there was sufficient electric light at the place of the accident.
4. PW2 another occurrence witness who reached at the place of occurrence also claimed that he is a resident of the locality. While he was returning from Manjeri after the second show he got down at Muttippadi bus-stop in an autorikshaw and while standing there, he saw the lorry driven by the Revision Petitioner coming from the Manjeri side towards Kozhikode side and hitting the motor cycle at the place Crl.R.P. No.1982 of 2003 5 of the accident. He identified the Revision Petitioner as the driver of the lorry. There was burning street light near the place of the accident.
5. Going by the appreciation of evidence given by PWs 1 and 2 it could be seen that the court below, concurrently placed a reliance on the evidence of PWs 1 and 2 and found that their evidence is trustworthy and credible. Further more the evidence given by PWs 1 and 2 proves the identity of the Revision petitioner as the driver of the vehicle which the hit motor cycle. Both unambiguously testified that they identified him at the time when he getting down from the lorry in the light of street light.
6. I do not find any kind of perversity in the appreciation of evidence placing reliance on the evidence of PWs1 and 2. Regarding the identity PW5 the owner of the vehicle stated that he does not know who was driving the lorry at the relevant time. The said evidence of PW5 is also suspicious and pointing towards the identity of the Revision Petitioner as driver Crl.R.P. No.1982 of 2003 6 of the vehicle, particularly in the absence of any material to show that the vehicle was leased out to a company, though he deposed in evidence.
7. The evidence of PWs 1 and 2 get corroboration from Ext.P5 scene Mahazer. It is revealed from Ext.P5 scene Mahazer that at the relevant place the road lies east west. The width of tar portion is 8.50 metres. The accident spot is 70cm south of the northern tar end. The road is straight towards east upto 50 metres and towards west, upto 150 metres. It is also stated in Ext.P5 that there were tyre marks at width of 20 cms and length of 8.10 metres towards east from the place of accident. 12 metres further east of that tyre mark, there were similar tyre marks at width of 20cms and length of 6.20metres. The width of the tyre of the lorry is 24 cms. There were marks of grazing on the tyre of the lorry. Therefore, it is evident that the tyre marks seen on the spot were that of the offending lorry. That lorry was seen 17 metres north-west of the place of the accident. It is to be borne in mind that the Crl.R.P. No.1982 of 2003 7 lorry was proceeding from east to west and the motor cyclist was coming from the opposite direction towards east. The accident occurred at the extreme wrong side of the tipper lorry and at the same time the right side of the motor cyclist. Even after the accident the tipper lorry went away at the distance of 17 metres north west of the spot of accident. The descriptions in the scene mahazer shows that the vehicle was coming with high speed and the same was beyond the control of the driver of the tipper lorry. Even though he had applied break, he could not stop the vehicle due to the high speed of the vehicle. On analysis of the scene mahazer itself it could be seen that the accident was caused by the rashness and negligence of the Revision Petitioner while driving the vehicle.
8. Therefore, I find that there is no illegality or impropriety in the concurrent finding that the Revision Petitioner had been driving the vehicle negligently without proper care and caution. I do not find any kind of perversity in the appreciation of evidence of PWs 1 Crl.R.P. No.1982 of 2003 8 and 2. I find that the evidence of PWs 1 and 2 coupled with Ext.P5 scene mahazer sufficiently brings home guilt of the accused beyond reasonable doubt. Consequently, I confirm the concurrent findings of conviction entered by the court below.
9. The learned counsel for the Revision Petitioner submits that now the Revision Petitioner is aged 63, and he was undergoing mental pain and agony since the last more than one decade. In that view, the learned counsel for he Revision Petitioner prayed for a lenient view in the matter of sentence. Having regard to the fact that now he is aged 63 years, and more than one decade had been elapsed after occurrence, I am inclined to take a lineant view; but at the same time I am of the opinion that misplaced sympathy can not be applied in the matter of Criminal administration of justice. Therefore, I am inclined to take a balanced view in between these two aspects .
10. Therefore in supersession of the sentence imposed by the trial court and confirmed by the Crl.R.P. No.1982 of 2003 9 appellate court the Revision Petitioner is sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.10,000/-(Rupees Ten Thousand only) and in default to undergo simple imprisonment for one month under Section 304 (A) IPC and to undergo simple imprisonment for a period of one month each under Section 337 and 279 IPC. The fine amount shall be given to the legal heirs of the deceased motor cyclist under Section 357(3) of the Cr.P.C. and the trial court is directed to issue notice to them, after collecting their details through concerned Police Station. The term of sentence shall run concurrently. The set of is allowed.
This Revision Petition is disposed of accordingly.
Sd/-K.HARILAL JUDGE OKB/MJL