Kerala High Court
Thankachan vs State Of Kerala on 15 October, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936
Crl.Rev.Pet.No. 2545 of 2003 ( )
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CRA 472/1998 of SESSIONS COURT,THIRUVANANTHAPURAM
CC 174/1995 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,ATTINGAL
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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THANKACHAN, S/O.KOCHUMON, OUNNAVELIKADAYIL VEEDU,
ENATHUMURI, ENATH VILLAGE, ADOOR TALUK.
BY ADVS.SRI.P.K.VARGHESE
SRI.E.C.BINEESH
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SHRI N.SURESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.R.P. No.2545 of 2003
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Dated this the 15th day of October, 2014.
ORDER
Revision petitioner was convicted by the learned Judicial First Class Magistrate-II, Attingal in C.C.No.174 of 1995 for offences punishable under Sections 279, 337 and 304A of the Indian Penal Code (in short, "IPC") and Section 3(1) read with Section 181 and Section 56 read with Section 192 of the Motor Vehicles Act, 1988.
2. Prosecution case is that on 29.09.1993 at 9.30 a.m., the revision petitioner, without a valid driving licence, drove a lorry bearing No.KLV 2712, with PWs 1 to 45 and other passengers on the platform, in a rash and negligent manner so as to endanger human life through M.C.Road and the lorry capsized at Pirappancode causing injury to 45 persons. Besides, two persons travelled on the platform succumbed to the injuries. Before the court below, 59 witnesses were examined. Exts.P1 to P62 were marked. MOs 1 to 3 are the material objects marked. There is no defence evidence.
3. Learned Magistrate after considering the evidence found that the revision petitioner drove the vehicle at the material time and his rashness and negligence caused the accident. It is also found that he was responsible for the death of two passengers carried on the platform of the Crl.RP No.2545/2003 2 lorry. On the above reasoning, the revision petitioner was convicted under various provisions of law and awarded appropriate sentences. The revision petitioner carried the matter in Crl.Appeal No.472 of 1998 before the learned Sessions Judge, Thiruvananthapuram. Learned Sessions Judge considered the materials on record and found that the convictions and sentences awarded by the court below were proper and so the appeal was dismissed. Feeling aggrieved by the judgment in the appeal, the accused has come up in revision.
4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
5. Learned counsel submitted that the revision petitioner had raised a question of identity of the driver. According to him, he was not the driver of the offending vehicle at the material time. Learned counsel further contended that the injured persons were travelling on the platform of the lorry and they had no occasion to see the driver, who caused the accident. Learned Prosecutor relied on the testimony of PWs 1 to 16, 19 to 22, 24 to 26, 29, 31, 33, 35, 40, 41 and 44 to show that all these witnesses identified the revision petitioner as the driver, who was responsible for the accident. According to these witnesses, the revision petitioner was driving the vehicle rashly and negligently so as to endanger human life. That apart, some of Crl.RP No.2545/2003 3 the witnesses are neighbours of the revision petitioner. So the plea that the driver was not properly identified cannot be sustained.
6. Learned counsel further contended that the revision petitioner had not sustained any injury in the accident. If he was the driver of the lorry at the material time, naturally he would also have sustained serious injuries since the vehicle was extensively damaged. Merely because he escaped unhurt, it cannot be found that he was not the driver of the vehicle at the relevant time. In view of the convincing evidence adduced by the injured witnesses, it can only be held that the petitioner was driving the vehicle at the material time. On a perusal of the judgments of the two courts below, I find no illegality, irregularity or impropriety in the conviction of the revision petitioner for various offences.
7. Learned counsel for the revision petitioner submitted that the petitioner is aged about 60 years. Leniency may be shown in the matter of sentence, submitted the learned counsel for the revision petitioner. Learned Prosecutor submitted that in the accident two persons lost their life. Apart from that, PWs 4, 9, 13, 22 and 34 sustained severe fractures disabling them from pursuing the job of head load workers. The courts below did not award compensation in this case either under Sec.357(1) or (3) of the Code of Criminal Procedure (in short, "Cr.P.C."). The trial court Crl.RP No.2545/2003 4 has only imposed fine of `2,000/- on the revision petitioner. It is settled law that if the substantive sentence is reduced, enhancement of fine or compensation will not amount to enhancement of punishment in an appeal or revision preferred by the accused. Considering that principle, I modify the sentence in the following manner:
The conviction of the revision petitioner under all the counts are confirmed. The punishment of simple imprisonment for two years under Sec.304A IPC is reduced to simple imprisonment for a period of six months. Rest of the sentences are confirmed. All imprisonments shall run concurrently. The revision petitioner is bound to compensate the injured witnesses. It is true that the legal heirs of the deceased passengers are also entitled to get compensation not only under Sec.357 Cr.P.C., but also under other law. However, considering the paying capacity of the revision petitioner, I find that it will be appropriate to direct him to pay a total compensation of `50,000/- (Rupees fifty thousand only) under Sec.357(3) Cr.P.C. and it shall be apportioned equally between PWs 4, 9, 13, 22 and
34. The trial court shall issue notice to the revision petitioner directing him to serve the sentence and pay compensation. The trial court shall also issue notice to the above mentioned witnesses intimating about their entitlement to compensation. In default of payment of compensation, the Crl.RP No.2545/2003 5 revision petitioner shall undergo simple imprisonment for a further period of six months.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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