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2006 DIGILAW 690 (KER)

Devarajan v. State of Kerala

2006-10-12

R.BASANT

body2006
Judgment :- This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sections 279 and 337 I.P.C. 2. The petitioner faces a sentence of S.I. for a period of three months and to pay a fine of Rs.1,000/- under Section 279 and a sentence of S.I. for three months and a fine of Rs.500/- for the offence under Section 337 I.P.C. The substantive sentences have been directed to run concurrently. 3. The prosecution alleged that on 13.7.1997 at about 9.15 p.m. the petitioner drove a bus/stage carriage from south towards north along the road from Ramanattukara to Kozhikode and in the process of attempting to overtake another stationary vehicle in a rash and negligent manner at an excessive speed, strayed over to the wrong side of the road and knocked down an autorikshaw, in which PWs 1 and 3 to 6 were travelling. The prosecution alleged that the accident occurred solely on account of rashness and negligence of the petitioner. 4. Investigation commenced with Ext.P1 F.I. statement lodged by PW1 and culminated with the final report submitted by PW13. The accused denied the offences alleged against him and thereupon the prosecution examined PWs. 1 to 13 and proved Exts.P1 to P12. The petitioner did not dispute the fact that he was driving the vehicle. But according to him, the boot was on the other leg, i.e. it was because of the negligent driving of the driver of the autorikshaw that the accident had occurred. No defence evidence was adduced by him. 5. The courts below, on an anxious consideration of all the relevant inputs, concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offences punishable under Sections 279 and 337 I.P.C. Accordingly they proceeded to pass the impugned concurrent judgments. 6. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contention that the courts below erred in accepting and acting upon the oral evidence of PWs. 1 to 6. In the circumstances of the case, the evidence of PWs. 1 to 6 should not have been accepted and acted upon, contends the learned counsel for the petitioner. 7. The crucial evidence is that of PWs. 1 to 6, PW13, Ext.P1 F.I. statement and Ext.P2 scene mahazar. 1 to 6. In the circumstances of the case, the evidence of PWs. 1 to 6 should not have been accepted and acted upon, contends the learned counsel for the petitioner. 7. The crucial evidence is that of PWs. 1 to 6, PW13, Ext.P1 F.I. statement and Ext.P2 scene mahazar. 8. Negligence is the breach of the duty to take care, which a reasonably prudent person is expected to and rashness is the gross disregard of the known consequences of one's indiscreet act. The road at the scene of the crime lies straight with clear visibility. The tarred road has a width of 7.05 metres. There are road margins on either side. The spot of occurrence is located at a distance of 1.30 metres west of the eastern kerb. This location of the spot of incident by PW13 in Ext.P2 scene mahazar with the help of the identification by PW2 is not seen seriously challenged at all. The tarred road has a width of 7.05 metres and the imaginary mid line must run at a distance of 3.525 metres from either kerb. The fundamental rule of the road in India is that the vehicles must keep left. The left half of the road is reserved for onward traffic. Any person who strays over to his right half of the road must exercise great amount of care and caution. He should not obstruct the flow of vehicle in the opposite direction. The degree of care expected from a driver when attempting to overtake another vehicle and in that process going over to the zone of the road reserved for traffic in the opposite direction is great. That fact cannot be ignored while appreciating the facts in this case. 9. PWs. 1 and 3 to 6 are passengers in the autorikshaw. PW2 is an eye witness/pedestrian, an autorikshaw driver himself, who had allegedly witnessed the incident. Their evidence clearly shows that the petitioner was engaged in the attempt of overtaking another stationary vehicle. The location of the spot of impact which I have already accepted, clinchingly support the prosecution case. No worthwhile reason is urged before me as to why the testimony of PWs. 1 to 6 can and ought to be discarded. Except that PWs. Their evidence clearly shows that the petitioner was engaged in the attempt of overtaking another stationary vehicle. The location of the spot of impact which I have already accepted, clinchingly support the prosecution case. No worthwhile reason is urged before me as to why the testimony of PWs. 1 to 6 can and ought to be discarded. Except that PWs. 1 and 3 to 6 are the injured and PW2 happened to be an autorikshaw driver and the vehicle involved in the accident is also an autorikshaw, no other reasons are shown to exist. At any rate, at this third tier of criminal litigation I do not find any reason to interfere with the concurrent findings of the courts below. 10. The counsel for the petitioner contends that the passengers in the autorikshaw were drunk. There is not a semblance of evidence to support or substantiate that plea. Admittedly the wound certificates issued by the doctor do not support this version at all. 11. Having anxiously considered all the relevant inputs and the detailed submissions of the learned counsel for the petitioner, I find no reason which can persuade this court at this stage to invoke the revisional jurisdiction of superintendence and correction against the impugned verdict of guilty and conviction. 12. The learned counsel for the petitioner finally submits that leniency may be shown on the question of sentence. The offence is punishable with imprisonment or fine or both. Misplaced sympathy and undeserved leniency in respect of traffic offences will be counter productive and would further endanger life on the road, which is causing great anxiety and concern in the minds of the members of the polity. I am not persuaded to agree that the petitioner deserves to be spared of a substantive sentence of imprisonment. But I do take note of the nature of the offences and the relatively minor nature of the injuries suffered by the victims. I am, in these circumstances, satisfied that the substantive sentence of imprisonment can be modified and reduced. In coming to this conclusion, I take note of the fact that deterrence in a case like this does not necessarily depend on the length of the term which the offender spends behind the bars. 13. In the result: (a) This revision petition is allowed in part. (b) The impugned concurrent judgments are upheld in all other respects. In coming to this conclusion, I take note of the fact that deterrence in a case like this does not necessarily depend on the length of the term which the offender spends behind the bars. 13. In the result: (a) This revision petition is allowed in part. (b) The impugned concurrent judgments are upheld in all other respects. But the substantive sentence of imprisonment on both counts is reduced to a period of 15 days each and it is directed that the said sentences shall run concurrently. 14. The petitioner shall appear before the learned Magistrate on or before 30.11.2006 to serve the modified sentence hereby imposed. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.