Kunhayammu Haji vs The State of Kerala

Justice S. Siri Jagan

The petitioner is the accused in C.C.No. 168/1996 before the Judicial First Class Magistrate''s Court-II, Perinthalmanna.

He was prosecuted for offences punishable under Sections 279 and 337 of the Indian Penal Code.

The prosecution case is narrated in paragraph 2 of the judgment of the Magistrate''s Court, which reads thus:

The prosecution case is that on 23.4.1996 at about 9.30 a.m. the accused drove motorcycle No. KL-10/B 8731 in a rash and negligent manner so as to endanger human life through the Melattur-Karuvarakundu public road and when it reached at Eppikkad, it knocked down a boy named Hassan, aged 6 years and caused simple injures to him. Hence the accused committed the above said offences.

The prosecution examined PWs 1 to 10 and marked Exts. P1 to P6 documents. The accused did not adduce any evidence. After considering the evidence adduced by the prosecution, the Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for two months for the offence u/s 279 of the Indian Penal Code and to pay a fine of Rs. 500/- for the offence u/s 337 of the Indian Penal Code, in default of payment of which, he was directed to undergo simple imprisonment for a further period of one month. The petitioner filed Crl. Appeal No. 161/1999 before the Additional District and Sessions Judge, Manjeri, who dismissed the appeal confirming the conviction and the sentence.

The judgments of the courts below are under challenge in this Criminal Revision Petition.

According to the petitioner, there is no reliable evidence to prove negligence of the petitioner in driving his vehicle. He submits that apart from the evidence of PW2, who is the Madrassa teacher of the injured boy, there is no other evidence to support the prosecution case. It is submitted that his evidence does not inspire confidence. His version is different from the version given to the Police. It is also submitted that he had specifically stated that he did not point out the place of occurrence to the Police, whereas the scene mahazar is stated to have been prepared with the help of PW2. That itself would show that the evidence of PW2 is not reliable. It is further submitted that the injury caused to the victim is very minor. The contention of the petitioner is that it is not because of any negligence on the part of the petitioner that the accident happened, but because the boy, in the course of playing with other children, who were also walking along the road, came towards the centre of the road and despite the best efforts of the petitioner, the petitioner could not avoid hitting him.

The learned Public Prosecutor would contend that PW2 is a very reliable witness. He has spoken the truth. He did not try to lie even when he was forced to answer questions contrary to the statement in the scene mahazar, which would prove his truthfulness. It is also submitted that PW2''s evidence is convincing enough to hold that the petitioner was negligent in driving the motor cycle, which only caused the accident.

I have considered the rival contentions in detail.

On going through the evidence of PW2, I also find it very convincing. He is the Madrassa teacher of the victim, who is a boy aged six years. The time was in the morning when classes in the Madrassa were over and students were going back to their regular schools. The children were walking on both sides of the road. PW2 was walking three meters behind the injured boy. PW2 stated that the petitioner came in a motor cycle from behind, passed PW2 and thereafter hit the boy, who was walking along the mud portion of the road. In fact I find that the evidence against the petitioner has been brought out in cross examination by the petitioner himself. It was in cross examination that PW2 stated that the accident occurred on the mud portion of the road. It is in cross examination that PW2 stated that the motor cycle crossed him, went in front and hit the boy, which was after taking the motor cycle from the tarred portion road into the mud portion of the road hitting the boy, who was walking along the mud portion of the road. Of course, the learned counsel for the petitioner would contend that, as per the scene mahazar, the scene of occurrence is the tarred portion. But in cross examination of PW2, he stated that the boy fell down from the mud portion into the road after the accident. As such, the loopholes, if any, in the prosecution case were plugged by the petitioner himself in the cross examination. As I have already stated, the evidence of PW2 is very convincing and cogent. It has the ring of truth in it all throughout. I am satisfied that his evidence is sufficient to convict the petitioner. In the above circumstances, I do not find any perversity whatsoever in the appreciation of evidence by the courts below. Accordingly, the conviction is confirmed.

The learned counsel for the petitioner submits that the injuries are very minor. He points out that the following were the only injuries:

(a). Lacerated wound over the left rib of the mandible.

(b). A small lacerated wound over left forehead.

(c). Abrasion left foot, left hand.

He, therefore, submits that a lenient view may be taken in the matter of punishment.

Having considered the facts and circumstances of the case, I reduce the sentence of imprisonment for the offence u/s 279 to one of simple imprisonment for one month instead of two months. But I impose the maximum fine of Rs. 1000/-, which if realised, shall be paid to PW1, the father of the victim.

The Criminal Revision Petition is disposed of as above.