Kerala High Court
Revision vs By Advs.Sri.P.Vijaya Bhanu (Sr.) on 27 November, 2012
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 22ND DAY OF FEBRUARY 2013/3RD PHALGUNA 1934
Crl.Rev.Pet.No. 367 of 2013 ()
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AGAINST THE JUDGMENT IN CRA.666/2010 of SESSIONS COURT,
THRISSUR DATED 27-11-2012
AGAINST THE JUDGMENT IN CC.102/2004 of CHIEF JUDICIAL
MAGISTRATE COUR,THRISSUR DATED 28-09-2010
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REVISION PETITIONER(S)/
APPELLANT/ACCUSED:
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BIJOY,S/O.VIDHYASAGAR,
THANDAMPARAMBIL HOUSE, POKKULANGARA,
ENGANDIYUR VILLAGE, THRISSUR DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 22-02-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
NS
Crl.Rev.Pet.No. 367 of 2013 ()
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 : COPY OF THE JUDGMENT IN CRL. APPEAL NO.666 OF 2010
OF THE COURT OF THE IIIRD ADDITIONAL SESSIONS
JUDGE, THRISSUR, DATED 27.11.2012.
EXT.P2 : COPY OF THE JUDGMENT IN C.C.NO.102/2004 OF THE
CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR, DATED
28.09.2010.
RESPONDENT(S) EXHIBITS : NIL
/ TRUE COPY /
NS P.A. TO JUDGE
K. HARILAL, J
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CRL. R.P. NO.367 OF 2013
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Dated this the 22nd day of February 2013
O R D E R
The Revision Petitioner is the accused in C.C.No.102/2004 on the files of Court of the Chief Judicial Magistrate, Thrissur as well as the appellant in Criminal Appeal No.666/2010 of III Additional Sessions Judge, Thrissur. He was prosecuted for an offence punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code.
2. After trial, the learned Magistrate found the accused guilty under Sections 279, 337, 338 and 304A of the IPC and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under Section 279 of IPC. He was sentenced to undergo simple imprisonment for six months and also to pay fine of Rs.500/-, in default to undergo simple imprisonment for one month under CRL. R.P. NO.367 OF 2013 2 Section 337 IPC. Further he was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months under Section 338 of IPC. Further he was sentenced to undergo rigorous imprisonment for 2 years and also to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for 3 months under Section 304A IPC. The sentence of imprisonment shall run currently. He was also disqualified from holding his driving licence for a period of 3 years under Section 20(1) of the Motor Vehicles Act.
3. Challenging the conviction and sentence, though he preferred an appeal, after appreciating the entire evidence both oral or documentary, the appellate court also confirmed the conviction and modified sentence. Under Sections 279 and 337 IPC, he shall undergo simple imprisonment for six months each. Under Section 338 IPC, he shall undergo rigorous imprisonment for one year and for offence under Section 304A IPC, he shall undergo rigorous imprisonment for two years. This criminal Revision CRL. R.P. NO.367 OF 2013 3 Petition is filed challenging the concurrent findings of conviction and sentence imposed on the petitioner.
4. According to the prosecution, on 31/10/2000 at 5.30 pm, the accused drove KR Z 3930 bus from west to east along Thrissur-Kanjani public road in a rash and negligent manner as to endanger human life and at Kunnathangadi Nalamkallu, due to rash and negligent driving, it hit behind the bus bearing Reg. No.KRH 8330 which moved in the same direction and then dashed against the car bearing Reg. No.KRR 1327 travelled by CW8 and driven by the deceased Simon who is the husband of CW8. Due to that impact, the car and the bus moved southwards and hit on the boundary wall on the south. The said Simon died in the mishap and passengers of both buses, CW8, and the wife of deceased Simon sustained injuries. The injury sustained by CW8 were grievous in nature. Crime No.290/2000 of Anthikad Police station was registered on the basis of the First Information statement given by one Paul, a pedestrian who also had sustained injuries in the occurrence.
CRL. R.P. NO.367 OF 2013 4
5. The accused entered appearance and pleaded not guilty. Later seventeen witnesses were examined as PWs.1 to 17 and Exts. P1 to P15 were marked on the side of the prosecution. When examined under Section 313 Cr.P.C, the appellant denied all incriminating circumstances. He did not adduce any evidence in the defence. The learned Magistrate considered the question, was the appellant the driver of the offending bus at the relevant time of accident and whether the accident was caused by the rash and negligent driving of the accused? Pws.1 to 9 were injured occurrence witnesses in this case; they have not identified the accused. The identification of the accused as being the driver of the bus involved in the accident was brought out from the evidence of PW10, the conductor of the bus bearing No.KRZ 3930. It is deposed that the bus was coming from Kanjani to Thrissur. He stated that the accident was happened at 5.30 pm and admitted that he was the conductor of the bus. But he deposed that he could not remember the driver of the bus on the date of accident. He was declared hostile to CRL. R.P. NO.367 OF 2013 5 prosecution. In cross examination, PW10 admitted that he had seen the accused as driver of the bus. He further admitted that he used to work as conductor. When it was suggested to him that the accused was the driver of the bus at the time of accident. He stated that he could not remember. He admitted that he used to maintain trip sheet of the bus and the trip sheet produced before the court was written by him. He admitted that the trip sheet dated 31/10/2000 was written by him and the name of the driver was written as Bijoy. Thus he identified the accused as Bijoy who was the driver of the bus. The trip sheet is marked as Ext.P3 and the relevant page in Ext.P3 is marked as Ext.P3(a). On the basis of the above evidence, the court below concurrently found that the accused is the person who has driven the vehicle at the time of accident and his identity is proved by the examination of PW10 though he was declared hostile. When a specific question was asked suggesting that at the relevant time the accused was the driver of the bus he replied that he does not remember the driver of the bus at that time. It is pertinent to note that he CRL. R.P. NO.367 OF 2013 6 did not deny the suggestion pointing towards the accused. The only explanation is that he does not remember the driver. That part of his evidence is unbelievable and the court below rightly found that with regard to that aspect he was not trustworthy and he was tried to save his co-worker. But at the same time, he admitted Ext.P3 trip sheet which clearly shows that the accused is the driver of the bus. There is no circumstance to discard Ext.P3 as document evidencing identity of the driver of the bus at the relevant time.
6. The next question is whether he was rash and negligent in driving the vehicle. It is true that PWs.1 to 9, the injured occurrence witnesses have turned hostile regarding the identity of the accused and the cause of incident. But it was come out from the evidence of PW6, PW10 and PW11 that the bus which was driven by the accused hit behind the bus bearing Reg. No. KRH 5331. They deposed the sequences of events. PW11 deposed that his bus was stopped at the bus stop for purpose of taking passengers. It was at that time the bus which came from CRL. R.P. NO.367 OF 2013 7 behind hit his bus bearing No.KRH 5331 on its rear right side. It was also come out in evidence of PWs.10 and 11 that both buses were going to Thrissur. He further admitted that after hitting the bus, the bus driven by the accused collided against the car which was coming from opposite direction and thereafter hit against the compound wall. The accident was further narrated by PW6 who was the passenger in the car. She deposed that they were going from Thrissur towards Kanjani, the car was driven by her husband Simon. She deposed that car was keeping extreme left side though she stated that she did not know the reason for the accident. It is deposed by her that there was no fault on the part of her husband who was driving the car. On a conjoin reading of the evidence of PW6 and PW11 together, it can be seen that the bus driven by the accused hit behind the bus bearing Registration No.KRH 5331 on its right rear side and bus bearing Registration No. KRH 5331 was stationary at the bus stop for taking passengers and accused lost control over his bus. When he moved his vehicle and tried to overtake the bus which was parking in CRL. R.P. NO.367 OF 2013 8 front of his bus, in a rash and negligent manner, the bus collided with the car came from opposite side through its correct side. Ext.P2 is the scene mahazar which is proved by PW16 the Circle Inspector who investigated the case. He deposed the scene of occurrence in front of the house of PW8. The road at the place of the occurrence is having a width of 6 metres and the incident had happened at four meters south from the northern far end. Similarly, the road has clear vision of 500 meters each both to the east and west. The place of occurance itself shows the rash and negligent manner in which the accused moved his vehicle to overtake the bus bearing No.K.R.H.5331.
7. CW33 has noted that damage of the bus bearing No. KRH 5331 is on its rear right side at a length of 1.48 metres and at a height of 1.6 metres. The bus bearing registration No.KRZ 3930 was seen on the southern road margin close to the damaged compound wall of PW8. The damage of the offending bus is on its front left side at a length of 1.5 metres and at a height of 92 Cms. It is further noted that there was damages on its front left side at a CRL. R.P. NO.367 OF 2013 9 length of 2.26 metres. The car bearing registration No. KPR 1327 which was hit by the offending bus was seen on the front side of the bus bearing registration No. KRH 5331 at a distance of 1.5 metres, on the eastern side. The car was in a fully damaged condition. Thus from the evidence of PW8, PW10 and PW11 and Ext.P2 scene mahazar it can be safely concluded that the accident was caused by the rash and negligent driving of the accused.
8. Moreover the incident had happened, when the accused had tried to overtake the other bus which was stationary. As rightly found by the Court below, it is against the Rules of the Road Regulation 1989 issued under 118 of the Motor Vehicles Act. According to Rule 6 of the Rules, driver of a Motor Vehicle shall not pass a vehicle, travelling in the very same direction, if his passing is likely to cause inconvenience or danger to the other traffic proceeding in any direction, if he is near a point bend or corner or hill or other obstruction of any kind that renders the road ahead not clearly visible. The findings of the Court below in this regard is absolutely correct. It is also found that the bus CRL. R.P. NO.367 OF 2013 10 after hitting the car hit and damaged the compound wall of PW8. Thus it can be seen that it was the bus driven by the accused caused the accident and the accident was caused by the rash and negligent driving of the accused.
9. The accused has no case that the accident was due to any mechanical defects of his bus. He has no case that the accident was caused by the bus which was parking infront of his vehicle or by the car which was coming from the opposite direction. Exts.P8 ,P9 and P10 shows that the vehicle involved in the accident had no mechanical defects. The damages of the car as well as the bus involved in the accident was described by Ext.P2 scene mahazar noted by PW15 Vehicle Inspector and he has deposed in terms with the documents which he prepared after inspecting the spot. On an analysis of the documentary evidences as well the deposition of the PW15 Motor Vehicle Inspector and the investigating officer it could be seen that the accused was neither cautious nor careful. Had he been cautious and careful, the accident which caused the death of one person could have been avoided.
CRL. R.P. NO.367 OF 2013 11
10. Therefore, there is no illegality or impropriety in the appreciation of evidence and there is no circumstances warranting interference under the revisional jurisdiction of this court. Therefore I confirm the conviction entered by the courts below concurrently.
11. Coming to sentence part it is seen that the Trial Court imposed maximum period of imprisonment under Sections 279 ,304 (A) & 337 of the IPC and half of the maximum period under Section 338. The learned counsel for the revision petitioner submits that the revision petitioner had only 21 years of age at the time of accident and he is the only breadwinner of his family and the accident occurred 13 years back and now he is undergoing imprisonment. On this regard I heard the learned Public Prosecutor also. The learned Public Prosecutor submitted that he is not involved in any other offence since the last 13 years. Considering the principles of the reformatory theory, I am of the opinion that the simple imprisonment for a period of Six months each shall be sufficient for offences under Sections 338 and 304A of the IPC and the modified CRL. R.P. NO.367 OF 2013 12 sentence will meet the ends of justice. The sentence of imprisonment under Sections 304A and 338 of the IPC will stand reduced and modified to six months each. He shall undergo sentence of imprisonment under other offences as ordered by the Appellate Court. The sentence shall run concurrently. The disqualification under Section 21 of the Motor Vehicles Act will stand modified to a period of one year only. Conviction confirmed and sentence modified accordingly.
This revision petition is allowed in part.
K. HARILAL JUDGE NS