Kerala High Court
Sageer vs State Of Kerala on 16 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1789/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.REV.PET NO. 1789 OF 2013
AGAINST THE JUDGMENT DATED 10.06.2013 IN Crl.A NO.416
OF 2011 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA
ARISING OUT OF THE JUDGMENT DATED 11.07.2011 IN CC NO.839 OF
2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY
REVISION PETITIONER/APPELLANT/ACCUSED:
SAGEER
AGED 34 YEARS
S/O.SAITHU,MANAPARAMBIL HOUSE,VYPPIN
KARA,NJARAKKAL VILLAGE,ERNAKULAM DISTRICT.
BY ADV SRI.T.N.SURESH
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031.
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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ORDER
This revision petition has been directed against the
judgment in Crl.A No.416/2011 dated 10.06.2013 on the files of
the Additional District & Sessions Court, Muvattupuzha (for short
‘the appellate court’) as well as the judgment in C.C.No.839/2005
on the files of the Judicial First Class Magistrate Court,
Kolencherry (for short ‘the trial court’) dated 11.07.2011.
2. The petitioner is the accused. He faced trial for
the offences punishable under Sections 279 & 304A of IPC.
3. The prosecution case, in short, is that on
10.08.2005 at about 08.10 a.m., the petitioner drove mini lorry
bearing registration No.KL-7/AD 5971 through Muvattupuzha-
Ernakulam National Highway from east to west rashly, negligently
and at an excessive speed so as to endanger human life and it hit
against the motorcycle bearing registration No.KL-4/K 3644
ridden by Sri.Sisil Mathew from the opposite direction of the road
at Nambiarupady Bagam. As a result of the accident, Sri.Sisil
Mathew had sustained fatal injuries and he succumbed to the
injuries at 08.30 a.m., on 15.08.2005 while undergoing treatment
at the hospital.
4. The petitioner pleaded not guilty. Before the trial
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court, PWs 1 to 9 were examined and Exts.P1 to P8 were marked
on the side of the prosecution. No defence evidence was adduced.
After trial, the trial court found the petitioner guilty under Sections
279 & 304A of IPC and he was convicted for the said offences. He
was sentenced to undergo simple imprisonment for a period of six
months for the offence punishable under Section 279 of IPC and
he was sentenced to undergo simple imprisonment for a period of
one year for the offence punishable under Section 304A of IPC.
The petitioner preferred appeal before the appellate court
challenging the conviction and sentence. The appellate court
confirmed the conviction and modified the sentence under Section
304A of IPC to simple imprisonment for a period of six months.
This revision petition has been filed challenging the conviction and
sentence passed by the trial court as well as the appellate court.
5. I have heard Sri.T.N.Suresh, the learned counsel
for the revision petitioner and Sri. Sangeetha Raj N.R., the
learned Public Prosecutor.
6. The learned counsel for the petitioner submitted
that both the trial court as well as the appellate court went wrong
in convicting the petitioner based on the solitary evidence of PW1.
The learned counsel further submitted that identification of the
petitioner has not been properly proved. The learned counsel also
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submitted that Ext.P1 scene mahazar has not been proved in
accordance with law. On the other hand, the learned Prosecutor
submitted that both the courts, on appreciation of the evidence,
found that the petitioner drove the vehicle rashly and negligently
and hit against the motorcycle ridden by the deceased. The
learned Prosecutor submitted that this Court while exercising its
revisionary jurisdiction is not supposed to re-appreciate the
evidence.
7. PW1 is the sole eyewitness. He was proceeding
from Muvattupuzha to Ernakulam in his car. He deposed that he
was driving just behind the motorcycle ridden by the deceased.
He clearly deposed that he saw the accident. His evidence shows
that the petitioner drove the lorry at an excessive speed through
Muvattupuzha-Ernakulam National Highway and hit against the
motorcycle ridden by the deceased, which came from the opposite
direction. He identified the petitioner as the driver of the mini
lorry at the time of the accident. The learned counsel for the
petitioner submitted that in the statement given by the PW1
before the police under Section 161 of Cr.P.C, he did not give any
identification marks or features of the petitioner to identify him.
The learned counsel further submitted that in the 161 statement,
PW1 did not state that he had previous acquaintance with the
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petitioner. According to the counsel, in these circumstances, the
evidence of PW1, which was adduced after a considerable period
of time regarding the identification of the petitioner, cannot be
relied on. The learned counsel relied on the decision of this Court
in Palliyalil Sidique v. State of Kerala [2013 (3) KHC 302] in
support of his submission. It was held that in a case where an
occurrence witness omitted to say about the identity of the driver
in his 161 statement given to the police, the statement regarding
identity of the driver, for the first time, given before the court
cannot be relied on. But, a perusal of the evidence of PW1 would
show that his 161 statement not confronted to him. In short, the
statement given by him under Section 161 of Cr.P.C was not
contradicted. Hence, the contention raised by the learned counsel
for the petitioner that in the 161 statement given by PW1, he did
not disclose about the physical features or identification mark of
the petitioner or his acquaintance with the petitioner cannot be
accepted at all. As stated already, PW1 has clearly stated about
the accident, identity of the petitioner and also the negligence on
the part of the petitioner. A reading of the cross examination
would show that those specific evidence have not been seriously
challenged during cross examination.
8. Ext.P1 is scene mahazar. PW9 is the
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investigating officer who prepared the same. PW6 is the attesting
witness to Ext.P1 scene mahazar. Ext.P1 was marked through
PW6. PW9 also deposed about Ext.P1. As per the description in
Ext.P1, the place of incident is on the northern side of the national
highway i.e., the extreme wrong side of the lorry driver and the
correct side of the motorcyclist is the direction from the northern
tar end of the national highway, which has a total width of 9.10
meters. Since the road at the place of incident is having the total
width of 9.10 meters, the lorry driver could have proceeded
further without hitting against the motorcycle driven from the
opposite direction through the northern side of the vehicle. A
perusal of Ext.P1 mahazar would reveal that the lorry was lying on
the northern side of the road margin. The description in the
mahazar would further show that some damage has sustained to
the front bumper and bonnet of the lorry and extensive damage
had sustained to the motorcycle involved in the accident. The
learned counsel for the petitioner submitted that the contents in
Ext.P1 scene mahazar cannot be relied on since PW6 did not
support it. The learned counsel relied on the decision of the single
bench of this Court in Mohanan v. State of Kerala [2011 (3)
KHC 680] wherein it was held that mere marking of the scene
mahazar will not prove the existence or truth of the facts referred
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to in the scene mahazar and the facts disclosed from the contents
of the said documents have to be proved in accordance with law
by adducing evidence which is admissible in law. Even though
PW6, the attesting witness to Ext.P1, did not support the
prosecution, PW9, the investigating officer who prepared Ext.P1
has been examined. When PW9 was examined, the petitioner did
not challenge Ext.P1 or its contents at all. Hence, the contents in
Ext.P1 scene mahazar can be safely relied on to corroborate the
evidence of PW1.
9. The learned counsel next submitted that the
prosecution did not produce the trip sheet, as mandated under
Section 224 of the Motor Vehicles Rules, to prove that the
petitioner drove the vehicle at the time of the accident. I cannot
subscribe to the said argument for the simple reason that the
petitioner did not dispute at all that he did not drive the vehicle.
He had no case in the trial court as well as the appellate court,
that he did not drive the vehicle at the time of the accident.
10. It is well settled that the revisional jurisdiction
under Sections 397 and 401 Cr.P.C was to confer power upon
superior criminal courts a kind of paternal or supervisory
jurisdiction in order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of proper
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precautions or apparent harshness of treatment. It has been
consistently held by the Apex Court that the jurisdiction of the
High Court in revision is severely restricted and it cannot embark
upon re-appreciation of evidence. While exercising the revisional
powers under Sections 397 r/w 401 of the Code of Criminal
Procedure, the court is required to find out if there is any illegality
or impropriety in the findings of the trial court and the appellate
court warranting interference and it is not open to the High Court
to exercise the revisional power as the second appellate forum. In
Shlok Bhardwaj v. Runika Bhardwarj and others [(2015) 2
SCC 721), the Supreme Court held that the scope of revisional
jurisdiction of the High Court does not extend to re-appreciation of
evidence. Since there are concurrent findings of the trial court as
well as the appellate court, this Court would be circumspect in
invoking the revisional powers under Sections 397 r/w 401 of the
Code of Criminal Procedure. It is only if the decision rendered by
the appellate court and the trial court can be said to be either
perverse, arbitrary or capricious, this Court can invoke such
powers.
11. I have carefully gone through the entire records,
evidence, proceedings and the judgments of the trial court as well
as the appellate court. I find no impropriety or illegality therein
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warranting interference under the exercise of revisional powers
vested with the court.
12. The learned counsel for the petitioner submitted
that the petitioner is the only bread winner of his family consisting
of wife, children and aged parents. The counsel further submitted
that the petitioner has been undergoing the ordeal of trial for the
last more than twelve years and hence the benefit of the
Probation of Offenders Act, 1958 (for short PO Act) may be
extended to him. In view of the said submission, a report has
been called for from the District Probation Officer, Ernakulam. A
detailed report has been filed.
13. The PO Act has been enacted in view of the
increasing emphasis on the reformation and rehabilitation of the
offenders as useful and self-reliant members of society without
subjecting them to deleterious effect of jail life. The PO Act
empowers the Court to release on probation, in all suitable cases,
an offender found guilty of having committed an offence not
punishable with death or imprisonment for life or for the
description mentioned in S.3 and S.4 of the said Act. S.3 of the
PO Act confers power on the Court to release certain offenders
after admonition. S.4 of the PO Act deals with the power of Court
to release certain offenders on probation on good conduct. S.5 of
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the Act empowers the Court to direct payment of compensation
and costs in the event of invoking S.3 or S.4 of the Act. S.6 of the
PO Act stipulates restrictions on imprisonment of offenders under
twenty one years of age. As per S.11 of the PO Act, powers as
provided under S.3, S.4 and S.5 of the Act can be exercised by
the Appellate or Revisional Court as well.
14. S.3 of the PO Act for release after due
admonition is evidently not applicable in the nature of the
offences. The accused being above 21 years of age, S.6 also is not
applicable. S.4 of the Act would demonstrate that if a person is
found guilty of having committed an offence not punishable with
death or imprisonment for life, in that event, considering the
nature of the offence and the character of the offender, the Court
instead of sentencing him at once to any punishment may release
such person on probation of good conduct, on his entering into a
bond, with or without sureties, for a period not exceeding three
years. Before releasing the offender, on probation, the Court must
satisfy itself that offender or his surety, if any, has a fixed place of
abode or regular occupation in the place over which the Court
exercises jurisdiction or in which the offender is likely to live
during the period for which he enters into the bond. The Court
before passing the order of release on probation may also call
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report of the Probation Officer. The Court while releasing on
probation may also direct that accused shall remain under the
supervision of Probation Officer for a period not less than one
year.
15. In Dalbir Singh V. State of Haryana and
Others (AIR 2000 SC 1677) the Apex Court has held that a
convict can be released on probation only if the Court forms the
opinion that it is expedient to release him on probation for his
good conduct regard being had to the circumstances of the case.
It was further held that though the discretion has been vested in
the court to decide when and how the court should form such
opinion, yet the provision itself provides sufficient indication that
releasing the convicted person on probation of good conduct must
appear to the Court to be expedient. Explaining the word
“expedient”, the Court held thus “Here the word ‘expedient’ is
used in S.4 of the PO Act in the context of casting a duty on the
court to take into account ‘the circumstances of the case including
the nature of the offence’. This means S.4 can be resorted to
when the court considers the circumstances of the case,
particularly the nature of the offence, and the court forms its
opinion that it is suitable and appropriate for accomplishing a
specified object that the offender can be released on probation of
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good conduct”. In Satyabhan Kishore v. State of Bihar (AIR
1972 SC 1554), the District Probation Officer in his report made
no recommendation in favour of the accused and made no
adverse remark also. Still the Court expressed the view that in the
light of the laudable reformatory object which the legislature was
seeking to achieve, the provisions will have to be applied. In
Arvind Mohan Sinha v. Amulya Kumar Biswas and Others
(1974 SCC (Cri) 391), the offences involved were those under the
Customs Act and Gold Control Rules having impact on the
economy of the country. Still in the circumstances of that case,
the court found that the PO Act is applicable. In Rattan Lal v.
State of Punjab (AIR 1965 SC 444), the provisions of the PO Act
was applied even in a case where the Act was not in force at the
time of the commission of offence and in spite of the fact that the
trial court and the appellate court did not apply the provisions. In
Chhanni v. State of U.P. [(2006) 5 SCC 396], it was held that
the scope of S.4 of the PO Act is much wider. It applies to any
person found guilty of having committed an offence not
punishable with death or imprisonment for life. In Ishar Das v.
State of Punjab [1973 (2) SCC 65], it was held that the
provisions of the said Act are beneficial provisions and, therefore,
they should receive wide interpretation and should not be read in
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a restricted sense. In Mohd. Hashim v. State of UP and Others
(2016 KHC 6883), it was held that the Court before exercising the
power under S.4 of the PO Act has to keep in view the nature of
offence and the conditions incorporated under S.4 of the PO Act.
A Single Bench of this Court in Saji Charivukala Puthenveedu
v. State of Kerala [2023 (7) KHC 381] has held that though
release of offenders by invoking powers under S.4 of PO Act is
rarely resorted by courts when the offence involved is one under
S.279 and S.304A of the IPC, in an appropriate case, where
litigation has been pending for long and conduct of the accused is
not tainted by the involvement in any other similar offence either
prior to the accident, or during the long period of court
proceedings, there is no bar for invoking S.4 of PO Act.
16. Thus, the law is settled that beneficial provisions
of the PO Act have to be extended liberally in all suitable cases
taking into consideration the nature of the offence, age, character
and antecedents of the convict and the circumstances under which
the crime was committed.
17. The report filed by the District Probation Officer
would disclose that the petitioner is a family man who takes care
of his dependents. His wife, two school going children and his
aged parents are dependent on him. He is regular at his work and
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maintains good social relations. It is also reported that he is not
engaged in driving for the past ten years and unlikely to commit a
similar offence in the future. He hails from a socio-economic and
culturally deprived coastal community and possesses low
education. He is seen as a mature and law abiding person and is
understandable in nature. He is not involved in any other crime.
The Probation Officer recommended to give him the benefit of the
provisions of S.4(1) and (3) of the PO Act. Considering the fact
that the petitioner is a first time offender, that he has a family
dependent on him, that he is not involved in any similar offence
and that he has been undergoing the ordeal of trial for these
years, I am of the view that this is a fit case where S. 4(1) of the
PO Act could be extended to the petitioner.
18. S.5 of the PO Act empowers the Court to direct
payment of compensation and costs to the victim in the event of
invoking S.3 or S.4 of the PO Act. S.11(1) of the PO Act
empowers the appellate court to pass an order regarding the
payment of compensation as mentioned in S.5(1). S.5 is an
important provision. While extending the benefit of S.3 or S.4, the
court has to exercise the power u/s 5 liberally to compensate the
victim for the loss or injury sustained by him/her as well as the
cost of the proceedings incurred by him/her and, thus, to meet
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the ends of justice in a better way. The compensation must,
however be reasonable. As already stated, the victim had
sustained fatal injuries and succumbed to the injuries while
undergoing treatment at the hospital. Hence, I am of the view
that it is a fit case to award compensation to his legal heir. The
counsel also fairly conceded that adequate and reasonable
compensation can be awarded to the legal heir of the deceased
victim. Considering the facts and circumstances of the case, I am
of the view that Rs.1,00,000/- (Rupees one lakh only) can be
fixed as compensation.
19. In the light of the above findings, the conviction
and sentence passed by the trial court as well as the appellate
court under Sections 279 and 304A of the IPC are set aside. The
petitioner/accused is found guilty for the offence punishable under
Sections 279 and 304A of the IPC and he is convicted for the said
offence. The petitioner/accused shall be released u/s 4(3) of the
PO Act, and instead of sentencing him at present, he shall be
released on his entering into a bond for ₹1,00,000/- (Rupees One
lakh only) at the trial court with two solvent sureties to the
satisfaction of that Court, to appear and receive the sentence of
the said offences, when called upon during the period of three
years from the date of release and in the meantime, to keep the
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peace and be of good behaviour. In addition to the condition for
appearance at the Court for receiving sentence, the bond shall
contain conditions for observing peace and good behaviour,
appearance of the accused before the District Probation Officer,
Ernakulam on the first week of every month and intimation of
change of address to the said officer. The accused shall appear
before the learned Magistrate within 60 days from today. The
District Probation Officer, Ernakulam shall have supervision over
the accused for a period of three years and he shall make a report
once in every three months to the trial court about the conduct of
the offender. The petitioner/accused is further directed u/s 5 of
the PO Act to pay a compensation of Rs.1,00,000/- (Rupees one
lakh only) to the legal heir of the deceased victim within two
months from today. The Registry is directed to forward a copy of
this order to the District Probation Officer, Ernakulam.
The revision petition is disposed of as above.
sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp