Firoz vs State Of Kerala

A. Badharudeen, J.

This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (`Cr.P.C' hereinafter) and the revision petitioner is the sole accused in C.C.No.44/2008 on the files of the Judicial First Class Magistrate Court-II, Cherthala. Respondent herein is the State of Kerala. The revision petitioner assails judgment in C.C.No.44/2008 dated 29.01.2013 rendered by the Judicial First Class Magistrate Court-II, Cherthala as well as the judgment in Crl.Appeal No.76/2013 on the files of the First Additional Sessions Judge, Alappuzha dated 09.11.2015.

Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor appearing for the State.

I shall refer the parties in this revision petition as `prosecution' and `accused' hereinafter, for convenience.

The prosecution case is that at 5.30 pm on 1.12.2007 the accused herein had driven a car bearing Reg.No.KL-32-4113 through Alappuzha-Thoppumpadi Highway road in a rash and negligent manner so as to endanger human life. While so, when the car reached on the road margin on the north western side of Tharangam Sales Agencies run by one Anilkumar and Forum Diagnostic Lab run by one Harilal, the car hit down a pedestrain by name Lawrence and thereby Lawrence was thrown away. In consequence thereof Lawrence sustained very serious injuries. On the third day, ie. on 03.12.2007, Lawrence succumbed to injuries.

On this occurrence, crime was registered alleging commission of offences punishable under Sections 279 and 304A of the Indian Penal Code and on investigation it was revealed that the accused committed the said offences. Trial court secured the presence of the accused for trial and tried the matter. During examination, Pws1 to 13 were examined and Exts.P1 to P10 were marked. The trial court on appreciation of evidence, found that the accused herein committed offence punishable under Sections 279 and 304A of I.P.C and sentenced him to undergo simple imprisonment for six months each for offences under Section 279 nd 304A of I.P.C and to pay fine of Rs.1,000/- and Rs.2,000 respectively for the offences punishable under Sections 279 and 304A of I.P.C and in default of payment of fine, simple imprisonment for one month each.

Even though the revision petitioner/accused challenged the conviction and sentence imposed by the Magistrate Court, by way of appeal before the Sessions Court, Alappuzha vide Crl.Appeal No.76/2013, the learned First Additional Sessions Judge, Alappuzha on reappreciation of evidence confirmed the conviction while modifying the sentence as under:

"Turning to the sentence, I am of the view that interests of justice can be met by awarding a sentence of simple imprisonment for one month and fine of Rs.1,000/- in default simple imprisonment for 10 days for the offence u/s.279 IPC. Similarly, for the offence u/s.304A IPC the sentence is modified into one for simple imprisonment for three months and fine of Rs.2,000/- in default simple imprisonment for 20 days. Substantive sentences shall run concurrently. Point found accordingly."

The learned counsel for the revision petitioner/accused submitted that the accused was not properly identified as the driver of the vehicle at the time of the accident and, therefore, the courts below went wrong in convicting and sentencing the accused without proving the identity of the accused as the driver of the offending vehicle.

In view of the above submission, I have perused the evidence of PW1, PW3 and PW4, who deposed in support of the prosecution. The evidence of PW1 is that while he was walking from south to north through the eastern side of the road, the accused herein drove the car in a rash and negligent manner and dashed down a pedestrain by name Lawrence and in consequence thereof, Lawrence thrown away and he sustained very serious injury. The evidence of PW1 further is that the accused is known to him earlier as he was residing nearby his house and the accused was the person, who drove the vehicle at the time of accident, with certainity. The evidence of PW1 was not shaken during cross-examination. Further, the evidence of PW1, who is familiar to the accused was corroborated by the evidence of PW3 and PW4, who also supported the evidence of PW1 in the matter of occurrence. That apart, the courts below given emphasis to Ext.P2 mahazar to corroborate the negligence on the part of the accused.

In fact, the challenge on the ground of proper identity of the accused was found to be meritless since the accused was well identified by PW1, who is familiar to him.

On perusal of the lower courts judgments it could be gathered that the trial court as well as the appellate court rightly appreciated and reappreciated the evidence and finally found that the accused committed offences punishable under Sections 279 and 304A of the IPC. Therefore, the said conviction does not require any interference.

In so far as the sentence is concerned, going by the sentence imposed by the First Additional Sessions Court the same is very reasonable and any further reduction in sentence cannot be resorted to even though the same is pressed into by the learned counsel for the petitioner.  Since the sentence is reasonable, I am not inclined to interfere with the sentence imposed by the appellate court.

Hence the Revision Petition stands dismissed.

The order suspending the sentence and granting bail to the petitioner stands vacated and the bail bond executed by the revision petitioner shall stand cancelled. He is directed to surrender before the trial court to undergo the sentence within two weeks from today.

If the revision petitioner/accused fails to surrender before the trial court as directed within two weeks, the trial court shall execute the sentence as per law without fail.

Registry is directed to forward a copy of this order to the courts below for information and compliance.