IMPORTANT POINT
For conviction under Section 304(A) and Section 338 of IPC, there is no minimum sentence prescribed but term of sentence may extend to 2 years – Sentence can also be limited to fine without any term of imprisonment.

ORDER :

1. Leave granted.

2. Heard Mr. P.A. Noor Muhamed, learned counsel appearing for the appellant. The State of Kerala is represented by Mr. Harshad V. Hameed, learned counsel.

3. The appellant stands convicted of the offences punishable under Sections 279, 337, 338 and 304(A) of the Indian Penal Code, 1860 (for short the “IPC”) in connection with a road accident which took place at around 9:00 p.m. on 07.08.2007. The allegation against the accused was that he drove the mini Lorry in a rash and negligent manner and the mini Lorry hit against the motorcycle coming from the opposite direction. The pillion rider Santhosh Kumar fell down from the impact, sustained grievous injuries and died. The Lorry also hit a pedestrian walking on the road.

4. The Judicial First Class Magistrate-I, Alappuzha on the basis of evidence adduced before the Court convicted the mini Lorry driver and sentenced him in the following way:

“In the result, accused is sentenced to undergo simple imprisonment for 3 months u/s. 279 IPC and to pay fine of Rs. 500/- in default of payment of fine he shall undergo simple imprisonment for 5 days. He is sentenced to undergo simple imprisonment for 3 months u/s. 337 IPC and to pay fine of Rs. 500/- in default of payment of fine he shall undergo simple imprisonment for 5 days. He is sentenced to undergo simple imprisonment for one year u/s. 338 IPC and to pay fine of Rs. 1000/- in default of payment of fine he shall undergo simple imprisonment for 10 days. He is sentenced to undergo simple imprisonment for one year u/s. 304A IPC and to pay fine of Rs. 1000/- in default of payment of fine he shall undergo simple imprisonment for 10 days. Sentences shall run concurrently. He is acquitted of offence u/s. 162 r/w s. 177 of M.V. Act.”

5. The judgment of the trial court rendered on 17.03.2015 was sustained by the learned Additional Sessions Judge-II, Alappuzha in the Criminal Appeal No. 99 of 2015. The Criminal Revision filed by the accused was thereafter dismissed by the High Court under the impugned judgment dated 13.06.2024.

6. When this case was taken up on 20.08.2024, it was pointed out by the learned counsel for the appellant that the accused on being found guilty for the charged offences has been in custody for 103 days for the awarded sentence of 6 months. Accordingly, returnable notice was issued by this Court.

7. Today, when the case is taken up, Mr. P.A. Noor Muhamed, learned counsel would point out that PW-1, PW-4 and PW-5, who were at the place of occurrence, turned hostile and their evidence was relevant only for the purpose of proving the accident. The identification of the appellant is made on the basis of testimony of PW-6 Sugalal who was riding the motorcycle. PW-6 deposed in his evidence that after the accident, he saw the accused driver coming out from the driver seat of the mini Lorry and although the PW-6 was thrown away by the collision, he was in a conscious state at the relevant point of time.

8. The learned counsel for the appellant would then advert to the provisions of section 161 Code of Criminal Procedure (for short Cr.P.C.) statement given by PW-6 (Annexure P/2) where it was mentioned that the mini Lorry driver was an elderly person. Adverting to this omission in the statement given by PW-6 before the Police and his improved testimony before the trial court, the appellant’s counsel argues that this will amount to contradiction under the explanation given to Section 162(2) of the Cr.P.C.

9. On the above contention, the crucial thing that needs to be noted is that the appellant, at the relevant time of the accident, was aged around 52 years and the statement given by PW-6 before the Police with regard to the mini Lorry driver being an elderly person and his subsequent testimony before the trial court therefore is not found to be so significantly different, which might amount to contradiction. Therefore, the benefit of the explanation to Section 162(2) of the Cr.P.C. cannot be granted to the appellan