Madaswamy S/O.Thirumala vs State Of Kerala
2025 Latest Caselaw 4397 Ker

Kerala High Court

Madaswamy S/O.Thirumala vs State Of Kerala on 22 February, 2025

                                                 2025:KER:15622
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

            THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

  SATURDAY, THE 22ND DAY OF FEBRUARY 2025 / 3RD PHALGUNA, 1946

                   CRL.REV.PET NO. 391 OF 2012

       AGAINST THE JUDGMENT DATED 18.11.2011 IN Crl.A NO.264 OF

 2010 OF ADDITIONAL SESSIONS COURT-II, THODUPUZHA ARISING OUT OF

 THE JUDGMENT DATED 23.09.2010 IN CC NO.602 OF 2006 OF JUDICIAL

             MAGISTRATE OF FIRST CLASS, NEDUMKANDOM


REVISION PETITIONER/APPELLANT/ACCUSED:

          MADASWAMY S/O.THIRUMALA
          S/O.THIRUMALA, RESIDING AT WARD NO.V OF CHINNAKKANAL
          PANCHAYATH, SHUNMUGAVILASAM BHAGAM, SOORYA NELLI KARA,
          CHINNAKKANAL VILLAGE.


          BY ADVS.
          SRI.C.M.TOMY
          SRI.MATHEW SKARIA


RESPONDENT/RESPONDENT/COMPLAINANT:

          STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.

OTHER PRESENT:

          SMT. MAYA.M.N-PP

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 22.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P.391/2012
                                     2

                                                        2025:KER:15622


                               ORDER

The present criminal revision petition is preferred by the accused

impugning the judgment of the Additional Sessions Court, Thodupuzha in

Crl.Appeal No.264/2010. The offences alleged against the revision

petitioner/accused are under Sections 304A, 279 and 337 of the erstwhile

Indian Penal Code and under Section 3(1) r/w 181 of the Motor Vehicles

Act.

2. The prosecution case in a nutshell is that, on

07.02.2005 at about 8.45 a.m., a tractor bearing Reg.No.KL-6A-2871

driven by the accused, without having any driving license, through

Sooryanelli-Chinnakkanal road, in a rash and negligent manner knocked

down PW2 and his son. PW2 sustained simple injuries and his son

succumbed to the injuries and thereby the accused committed the

aforementioned offences.

3. Before the trial court, PWs 1 to 15 were examined and

Exts.P1 to P10 were marked. After the closure of the prosecution evidence,

the learned Magistrate examined the accused under Section 313(1)(b) of

the Code of Criminal Procedure.

2025:KER:15622

4. After hearing both sides, the learned Magistrate

convicted and sentenced the accused. The revision petitioner/accused was

sentenced to undergo simple imprisonment for three months u/s 279 IPC,

to undergo simple imprisonment for three months u/s 337 IPC and to

undergo simple imprisonment for two years and to pay a fine of

Rs.10,000/- u/s. 304(A) IPC and. A fine of Rs.500/- was imposed u/s 3(i)

r/w 181 M.V. Act. The trial court further directed that in default of

payment of fine of Rs.10,000/-, the accused had to undergo simple

imprisonment for one month. The trial court made it clear that the

sentence shall run concurrently.

5. Aggrieved by the judgment of the learned Magistrate,

the revision petitioner approached the Additional Sessions Court,

Thodupuzha and preferred Crl.Appeal No.264 of 2010.

6. The learned Additional Sessions Judge allowed the

appeal in part and set aside the sentence imposed under Section 279 of the

Indian Penal Code.

7. Impugning the judgment of the learned Additional

Sessions Judge, the accused preferred this criminal revision petition.

8. Adv.Maya M.N., learned Public Prosecutor submitted

that the impugned judgment of the learned Additional Sessions Judge is

2025:KER:15622 legally sustainable and no interference of this Court is warranted.

9. Per contra, Adv.C.M.Tomy, learned counsel for the

revision petitioner submitted that the impugned judgment is legally

unsustainable. Both the trial court and the appellate court had failed to

note the various illegalities, irregularities and improprieties in the

prosecution case.

10. The learned counsel for the revision petitioner

submitted that the prosecution has failed to allege and prove that the

petitioner/accused drove the vehicle in a rash and negligent manner. No

witnesses spoke about the rashness and the negligence of the driver of the

vehicle. The learned counsel further submitted that the prosecution has

failed to allege and prove that, death of the victim has direct nexus with the

rash and negligent driving of the revision petitioner.

11. It is further submitted that, both the trial court and the

appellate court had failed to appreciate the scene mahazar in its correct

perspective. The trial court and the appellate court had failed to consider

the fact that a tractor cannot take much speed and the reason for the

accident is abrupt crossing of the road by the child.

12. Adv.C.M.Tomy, the learned counsel for the revision

petitioner further submitted that, when two views are possible, one

2025:KER:15622 showing the guilt of the accused and the other pointing out the innocence

of the accused, the Court shall accept the latter view.

13. The learned counsel for the revision petitioner

submitted that PW2 and his son were walking through the center of the

road and the revision petitioner took the vehicle to the south extreme end

of the road in order to avoid the accident.

14. It is further submitted that the trial court and the

appellate court were not ready to accept the contention of the petitioner

that the police officials took away the original driving license of the

revision petitioner. Later, the same was given back and it was entrusted to

his lawyer. The learned counsel urged that the photocopy of the same may

be permitted to be produced in evidence under Section 391 of the Code of

Criminal Procedure.

15. On perusal of the records and upon hearing the

submissions of the learned Public Prosecutor and the learned counsel for

the revision petitioner, I do not find force in the argument. I do not find

any illegality, irregularity or infirmity which warrants the interference of

this Court invoking the revisional jurisdiction. It is trite law that the

revisional court cannot re-appreciate the evidence. In State of Kerala v.

Puttumana Illath Jathavedan Namboodiri [(1999) 2 SCC 452 =

2025:KER:15622 1999 SCC (Cri) 275], the Honourable Supreme Court held thus:

"5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..."

16. In Sanjaysinh Ramrao Chavan v. Dattatray

Gulabrao Phalke [(2015) 3 SCC 123 = (2015) 2 SCC (Cri) 19], the

Honourable Supreme Court held thus:

"14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant

2025:KER:15622 material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

17. The learned counsel for the revision petitioner

submitted that a lenient view may be taken with respect to the sentence

imposed. Considering the facts and circumstances of the case, I am of the

view that the sentence of two years imposed under Section 304A IPC can

be modified and reduced to simple imprisonment for three months.

However, the sentence imposed under sections 274 and 337 of the Indian

Penal Code and the default sentence are upheld. So also the fine imposed

under section 3(i) r/w 181 of the Motor Vehicles Act is maintained.

2025:KER:15622 In the result,

(i) Criminal Revision Petition is allowed in part.

(ii) The sentence imposed by the trial court under section 304A IPC is modified and reduced to simple imprisonment for three months. Fine of Rs.10,000/- imposed under this section is upheld.

(iii) The sentence imposed under section 337 of the Indian Penal Code and the default sentence are upheld.

(iv) The fine imposed under section 3(i) r/w 181 of the Motor Vehicles Act is maintained.

(v) The trial court shall execute the order in the modified form.

Sd/-

K. V. JAYAKUMAR JUDGE Sbna/-