Conviction and sentence under Sections 279, 337, 338 and 304 (A) of Indian Penal Code ( hereinafter referred to as 'IPC' for short) are under challenge in this revision. The revision petitioner faced prosecution before the Judicial First Class Magistrate-II, Attingal in C.C No.372 of 1998 on the allegation that at about 1.30 p.m on 14.8.1997, the revision petitioner drove the Tempo Trax No.KL.5-A 2278 in extreme rashness and negligence, along the Kottarakara- Thiruvananthapuram Public Road at Vamanapuram, in such way as to endanger human life and due to the said rashness and negligence, the vehicle happened to hit on a jeep that came from the opposite side, resulting in a major accident. In the said accident, many persons travelling in the two vehicles sustained injuries and one passenger in the jeep died. 2. The revision petitioner pleaded not guilty in the trial court, and the case proceeded for trial. The prosecution examined 34 witnesses in the trial court and marked Exts.P1 to P13. Four witnesses were examined in defence by the accused.
3. On appreciation, the learned Magistrate found that the evidence given by the defence witnesses is really artificial and doubtful. Accepting the evidence adduced by the prosecution, the trial court found the revision petitioner guilty under Sections 279, 337, 338 and 304 (A) of IPC. On conviction thereunder, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹ 1000/- under Section 279 of IPC, to undergo rigorous imprisonment for six months and to pay a fine of ₹ 500/-
under Section 337 of IPC, to undergo rigorous imprisonment for six months and to pay a fine of ₹ 1500/- under Section 338 of IPC and to undergo rigorous imprisonment for one year and to pay a fine of ₹ 5000/- under Section 304 (A) of IPC. From out of the total fine amount, if realised, ₹ 8000/- was ordered to be paid as compensation to the legal representatives of the deceased.
4. Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Thiruvananthapuram with Crl.A No.9 of 2001. In appeal, the learned First Additional Sessions Judge, Thiruvananthapuram concurred with the findings of the trial court and confirmed the conviction and sentence. Accordingly, the Criminal Appeal was dismissed by judgment dated 20.1.2004.
5. On a perusal of the case records, I find that there is no scope for interference in the concurrent findings of the two courts below. It stands proved by the evidence of the material witnesses that the major accident alleged by the prosecution occurred when the Tempo Trax No.KL.5A-2278 driven by the revision petitioner herein hit on the Jeep No.KL.07-M-4021 that came from the opposite side. All the witnesses are consistent that the jeep came along the proper side of the road and the Trax happened to hit on the Jeep when the Trax driver came to the wrong side while overtaking a K.S.R.T.C bus. That many persons travelling in the two vehicles sustained injuries and one person died in the accident is not disputed. The First Information Statement was given by one of the persons who sustained injuries in the accident. He was passenger in the jeep. The said witness was examined as PW1 in the trial court. PW2 to PW20 and PW23 are the other persons who sustained injuries. PW21 and PW22 are occurrence witnesses examined by the prosecution. PW24 to 34 include mahazar witnesses and also the Police Officers who conducted investigation. The defence could not bring out anything to show that there was any irregularity or illegality in the investigation.
6. The prosecution witnesses Nos.4,5,9,10, 11 to 20 and 23 turned hostile during trial. Though declared hostile and cross examined by the Assistant Public Prosecutor, nothing could be brought out in the cross-examination to prove the case of the accused. However, the other material witnesses examined by the prosecution including the first informant gave definite evidence incriminating the revision petitioner. All the material witnesses identified the revision petitioner as the driver of the Trax involved in the accident and all are consistent that the accident occurred due to the rashness and negligence of the Trax driver. PW21 and PW22, examined as occurrence witnesses, also stated in evidence that the accident occurred due to the over speed of the trax driven by the accused.
7. The defence pleaded by the accused is that the unfortunate accident occurred due to mechanical defect of the vehicle. His case is that the axle of the vehicle broke, as a result of which he lost control, the Trax happened to move to the wrong side, and hit on the jeep coming from the opposite direction. To prove the said defence case, he examined DW1 to DW4. DW4 is none other than the revision petitioner. Of course, DW1 and DW2 stated in evidence that while travelling in the Tempo Trax driven by the revision petitioner, they heard some noise, and then the driver told them that it was due to break failure. These two witnesses have nothing definite to say about the reason for the accident. DW3 is the Assistant Motor Vehicle Inspector, who had inspected the two vehicles involved in the accident. Ext.P13 is the report issued by the Assistant Motor Vehicle Inspector. Of course, he was not examined by the prosecution, but in defence evidence, the Assistant Motor Vehicle Inspector stated that on inspection, he could not see any mechanical defect and he could not see the axle in broken condition. Of course, he had noted some other damage, but those are not mechanical defect that will cause an accident. Thus, the defence pleaded by the accused stands not in any manner proved.,
8. The revision petitioner has, in fact, admitted the accident, in which many persons sustained simple and grievous injuries and one person died. All the material witnesses examined by the prosecution are definite and consistent regarding the reason for the accident that it happened due to the rashness and negligence on the part of the Trax Driver All the witnesses identified the revision petitioner as the driver of the Trax during trial. Nobody has, in any manner, implicated the driver of the Jeep involved in the accident. The jeep driver is also one of the material witnesses examined by the prosecution.
9. It has come out in evidence that the jeep involved in the accident was proceeding along the proper side of the road, and the Trax driven by the revision petitioner hit on the jeep only because it went to the wrong side. It has also come out in evidence that the Trax happened to hit on the Jeep when the revision petitioner carelessly overtook a K.S.R.T.C. Bus. Of course, he has practically admitted this, but his defence is that he happened to come to the wrong side when he lost control. But his case of mechanical defect stands not proved. In the above circumstances, the only finding possible is that the accident occurred due to the rashness and negligence on the part of the revision petitioner. I find no illegality or infirmity in the findings made by the two courts below on facts or the finding of guilty made by the two courts below. Accordingly, the conviction in this case is only to be confirmed.
10. Of course, I feel the necessity of some modification of sentence in this case. Though the accused pleaded a defence of mechanical defect and also examined some witnesses to prove his case, he could not succeed in his defence. The accident occurred in August, 1997 and now we are in 2014. During the long lapse of years, since the date of accident, the revision petitioner must have undergone some mental stress in view of the imprisonment imposed by the trial court. Considering the age and the circumstances of the accused and also considering the circumstances of the alleged accident, I feel that the minimum sentence under Section 354 (4) of Cr.P.C. will meet the ends of justice in this case. Accordingly, the substantive sentence imposed by the trial court can be reduced to rigorous imprisonment for three months, all to will run concurrently. The fine sentence imposed by the trial court, however, can be maintained with the default sentence thereon. The direction of the trial court to pay compensation also can be maintained. Subject to the above modification in sentence, this revision petition can be dismissed confirming the conviction.
In the result, this Criminal Revision Petition is dismissed confirming the conviction against the revision petitioner under Sections 279, 337, 338 and 304 (A) of IPC in C.C No.372 of 1998 of the Judicial First Class Magistrate -II, Attingal, however, subject to modification in sentence to the effect that the rigorous imprisonment imposed by the trial court under all the Sections will stand reduced to rigorous imprisonment for three months. The fine sentence imposed by the trial court with default sentence thereon under all Sections is maintained. The direction to pay compensation is also maintained. The substantive sentence will run concurrently. The revision petitioner is given time for three weeks to surrender before the trial court to serve out the sentence and make payment of the fine amount voluntarily, on failure of which, steps shall be taken from the trial court to enforce the sentence and recover the amount of fine or enforce the default sentence.
ma /True copy/ Sd/- P.UBAID JUDGE P.S to Judge