Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY,THE26H DAY OF NOVEMBER20135TH AGRAHAYANA, 1935 Crl.Rev.Pet.No. 2979 of 2011 (B) --------------------------------------------- [CRL.A.NO.10/2006 ON THE FILE OF THE COURT OF SESSIONS, THALASSERY DATED2710-2011, WHICH AROSE FROM S.T.C. NO.492/2005 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY] .............. REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------- MANOJKUMAR, S/O. KRISHNAN, AGED36YEARS, AUTO DRIVER, KANDAMKUNNU, (VIA).NEERVELI, KANNUR DISTRICT. BY ADVS.SRI.V.V.ASOKAN, SRI.P.P.RAMACHANDRAN. RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, (S.H.O, KANNUR), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON2611-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. CRL.R.P.NO. 2979/2011-B: APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A: COPY OF THE AWARD IN O.P.(M.V).583/2008 OF M.A.C.T., THALASSERY DATED3011/2012. ANNEXURE B: COPY OF THE AWARD IN OP.(M.V).1624/2005 OF M.A.C.T, THALASERY DTD. 30/09/2010. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K. HARILAL, J.
---------------------- Crl.R.P. No.2979 of 2011 ------------------------------ Dated this the 26th day of November, 2013 ORDER
The revision petitioner is the accused in ST No.492 of 2005 on the files of the Additional Chief Judicial Magistrate Court, Thalassery. He was prosecuted for the offence punishable under Sections 279 and 338 of the Indian Penal Code and convicted thereunder. He was sentenced to undergo rigorous imprisonment for 1= months for the offence punishable under Section 279 IPC and to undergo rigorous imprisonment for six months for the offences punishable under Section 338 of IPC. The sentence shall run concurrently. Set off is also allowed under Section 428 of the Cr.P.C. Feeling aggrieved though he had preferred Criminal Appeal No. 10 of 2006 before the Court of Session, Thalassery, after re-appreciating the entire evidence on record the learned Sessions Judge also confirmed the verdict of guilty, conviction and sentence as such without any interference. This revision petition is filed Crl.R.P. No.2979 of 2011 2 challenging the concurrent findings of conviction and sentence.
2. The prosecution case is that on 20/02/2005 at 17.30 hours PW1 being the rider of the motor cycle bearing No.KL13M6162rode the same along the public road running near Ponniam Service Co-operative Bank with PW2 as pillion rider and when they reached 40 metres south of Ponniam Service Co-operative Bank, the revision petitioner being the driver of an autorickshaw bearing No.KL13 4196 suddenly swerved his halted autorickshaw towards the right side in a harsh manner without taking notice of the incoming motor cycle and in that attempt caused it to collide with the motor cycle and as a result of the collision, Pws 1 and 2 were thrown on the road and they sustained grevious hurt. Thus the accused has committed offence punishable under Sections 279 and 338 of the Indian Penal Code.
3. Though this revision petition has been filed on various grounds assailing the conviction and sentence, the learned counsel for the revision petitioner submits that Crl.R.P. No.2979 of 2011 3 the sentence imposed on the revision petitioner alone is sought to be challenged in this revision petition. The learned counsel further submits that the sentence imposed on the revision petitioner is too harsh disproportionate with nature and gravity of the offence. The revision petitioner is an autorickshaw driver by profession and if he is incarcerated for a long period the entire family will be put in great hardship as he is the sole bread winner of his family consisting of wife and children. He is not involved in any other offences. The learned Public prosecutor submits that a reasonable modification can be made in the sentence.
4. Having regard to the aggravating and mitigating circumstances of the case, I am of the opinion that the sentence imposed on the revision petitioner is a little harsh and disproportionate with nature and gravity of the offence. Prison term can be imposed to secure the interest of deterency. But deterency in a case like this does not necessarily depend on the length of the term that the offender spends behind the Bar. At the same Crl.R.P. No.2979 of 2011 4 time misplaced sympathy cannot have any place in the Criminal adjudicatory process. Therefore, I am inclined to take a balanced view. The substantive sentence of simple imprisonment imposed on the revision petitioner for both offences will stand reduced and modified to simple imprisonment for one day till rising of the court provided that the revision petitioner shall give adequate compensation to Pws 1 and 2 and the same will meet the interest of justice.
5. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the revision petitioner will stand sentenced as follows:
6. The revision petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a compensation of Rs.7000/- (Rupees Seven Thousand only) to PW1, under Section 357 (3) of the Cr.P.C. for the offence under Section 279 of IPC and in default to undergo simple imprisonment for one month. Further he is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a Crl.R.P. No.2979 of 2011 5 compensation of Rs.7000/- to PW2 under Section 357 (3) Cr.P.C. for the offence under Section 338 of IPC and in default to undergo simple imprisonment for one month. The substantive sentence of simple imprisonment shall run concurrently. If the revision petitioner is unable to pay the compensation directly, the same can be deposited in the trial court and in that event PW1 and PW2 are allowed to withdraw the same from the trail court. The revision petitioner shall appear before the trial court to suffer substantive sentence of simple imprisonment as ordered above on or before 02/01/2014 with sufficient proof to show payment of compensation. This Revision Petition is disposed of accordingly. Sd/- K.HARILAL JUDGE MJL