IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 Crl.Rev.Pet.No. 96 of 2008() ---------------------------- CRA.131/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC.244/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHANBATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ ABOOBACKER, S/O.MUHAMMAD, POYILANGAN VEEDU, KIZHAKOTH AMSOM, KODUVALLY. BY ADV. SRI.LALJI P.THOMAS RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA REPRESENTED BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.96 of 2008 ---------------------------------------- Dated this the 7th day of February 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution for offences under Sections 279, 338 and 304 (A) I.P.C. The petitioner now faces a sentence of S.I for a period of six months, one year and one year respectively for the said offences. There is a further direction to pay an amount of Rs.5,000/- as fine under Section 304A I.P.C. Out of the fine amount, an amount of Rs.2,000/- was directed to be paid to PW1 as compensation under Section 357(1) Cr.P.C. 2. The crux of the allegations against the petitioner is that he, on 30/09/2004, at 2 p.m was the driver of a K.S.R.T.C bus No.KL 154907. He drove the said vehicle in a rash and negligent manner at an excessive speed endangering human life through the KSRTC bus stand situated at Batheri. As a result of such rashness, negligence and excessive speed, the bus which was to be parked in the bus bay of the K.S.R.T.C. bus stand went beyond the way and stopped ultimately when it hit against the wall. One person - PW1 suffered grievous hurt and another - one Crl.R.P.No.96/08 2 Subair succumbed to his injuries. The F.I.S Ext.P6 was lodged by an eye witness - PW12, who was present along with the deceased. Ext.P6(a) F.I.R was registered. Investigation was completed and final report was filed by PW18. 3. Cognizance was taken by the learned Magistrate. The petitioner denied the allegations levelled against him. Thereupon the prosecution examined PWs 1 to 18 and proved Ext.P1 to P7. PW1 is the injured. PW2 is her husband, an eye witness, PW3 is the conductor of another K.S.R.T.C bus. He also claims to be an eye witness. PW4, another alleged eye witness turned hostile to the prosecution completely. PWs 5 and 6 are attestors to the scene mahazer Ext.P1. PW7 is the doctor who examined PW1 and issued Ext.P2 and PW11 is the doctor who treated her and issued Ext.P5 discharge certificate. PW8 is an attestor to Ext.P3 inquest report. PW10 is the doctor who conducted the postmortem examination of the body of the deceased and issued Ext.P4 postmortem certificate. PW9 is the Vehicle Inspector of the KSRTC bus and he was examined to prove that the petitioner was the driver to whom the vehicle was entrusted on the relevant date. PW12, the informant, claims to be an eye witness in Ext.P6 F.I.S; but he turned hostile Crl.R.P.No.96/08 3 completely to the prosecution. PW14 is yet another attestor to Ext.P3 inquest report. PW16 is the Motor Vehicle Inspector who inspected the vehicle driven by the accused and issued Ext.P7 inspection report. PW17 is the Controlling Inspector who allegedly produced the vehicle documents in respect of the vehicle to PW18 investigating officer. Those documents have not been marked before court. PWs 15 and 18 are police officials who have various roles to play in the registration of the crime and in the filing of the charge sheet. 4. The accused, in the course of cross-examination of the prosecution witnesses and when examined under Section 313 Cr.P.C, denied all circumstances which appeared in evidence and which were put to him. He denied that he was the driver of the vehicle at the relevant time. He denied the allegation that the accident occurred on account of any rashness or negligence on his part. No defence witnesses were examined. 5. The courts below concurrently came to the conclusion that it was absolutely safe to place reliance on the oral evidence of PWs 1 to 3 and PWs 9 and 17 to come to the conclusion that the petitioner was the driver of the vehicle at the relevant time and that the accident had taken place solely on account of Crl.R.P.No.96/08 4 rashness and negligence of the petitioner. Accordingly the courts below proceeded to pass the impugned concurrent judgments. 6. The petitioner claims to be aggrieved by the impugned concurrent verdict of guilty, conviction and sentence. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner advances three specific contentions. 7. The learned counsel for the petitioner first of all contends that the prosecution has not succeeded in establishing the identity of the driver of the vehicle. The learned counsel placing reliance on binding precedents urges that the identity of the offender is as important an ingredient to be proved in a traffic offence case as in any other case. The courts below erred in not giving due importance and significance to the ascertainment of the identity of the offender. 8. I have considered this contention in detail. PW1, an injured and her husband PW2 who were without any dispute present in the bus stand at the relevant time had spoken that the petitioner was the driver of the vehicle at the relevant time. Crl.R.P.No.96/08 5 PW3, a conductor of another K.S.R.T.C bus who was also allegedly present at the scene of the crime had identified the petitioner to be the driver of the vehicle. PWs 4 and 12 had, of course, turned hostile and their evidence offers no specific help for the purpose of identification of the accused. The courts below further relied on the evidence of PWs 9 and 17 to support the evidence of PWs 1 to 3 about the identity of the offender. PW9, the Vehicle Inspector and PW17, the Controlling Inspector, though not eye witnesses to the occurrence, made specific and categoric statement that the petitioner was the driver to whom the vehicle was entrusted for driving on that day. PW17 claimed that the relevant documents to show that fact were also handed over to the investigating officer ; but for obscure reasons, those documents have not been produced before court. 9. A criminal trial court cannot deteriorate into a mere effort to identify whether the investigating officer has played his part properly and to perfection. The criminal trial also is an endeavour on the part of the system to ascertain the truth. Merely because of inadequacy in the conduct of the prosecution or the investigating officer, the prosecution case cannot fall. Such vice must generate reasonable doubt in the mind of the Crl.R.P.No.96/08 6 court. The evidence of PWs 1 to 3 established beyond the pale of doubt or controversy that the petitioner was the driver of the vehicle at the relevant time. This evidence of PWs 1 to 3 is further supported by the oral evidence of PWs 9 and 17 though they have not produced the relevant documents which would have sealed the fate of the controversy which is attempted to be raked up now. That inadequacy, according to me, cannot deliver any advantage to the accused. The finding that the petitioner was the driver of the vehicle at the relevant time is according to me, absolutely justified and the same does not warrant revisional interference. 10. Secondly, the learned counsel for the petitioner points out that the evidence of PWs 1 to 3 does not justify the conclusion that rashness or negligence of the driver of the K.S.R.T.C bus was responsible for causing the accident. On this aspect again, we have to rely on the evidence of PWs 1 to 3 as also the admitted earlier statement given by PW12 in Ext.P6. In view of the hostility of PW12, Ext.P6 cannot be reckoned as substantive evidence. I need only take note of the fact that the oral evidence of PWs 1 to 3 get support and inspiration from the contents of the prompt F.I.S Ext.P6 lodged by PW12 who Crl.R.P.No.96/08 7 admitted that earlier statement of his. 11. The K.S.R.T.C bus, which must have been taken to the bay and stopped there to enable passengers to embark did not stop at the bay. It went beyond the bay, entered the area where passengers sit and then stopped ultimately when it hit against the wall of the K.S.R.T.C. bus stand. The deceased was caught in between and the victims were knocked down by the bus resulting in injuries to them. The evidence of PWs 1 to 3 as also the contents of the scene mahazer Ext.P1 declares eloquently the cause of the accident and the negligence/rashness of the driver of the K.S.R.T.C bus. It would be puerile and perverse for any prudent mind with the available evidence to jump to a conclusion that the rashness and negligence have not been established. 12. The learned counsel for the petitioner attempts to advance an argument that, at any rate, it must be concluded that mechanical defect of the vehicle must have led to the accident. In this context, we have the oral evidence of PW16, Motor Vehicle Inspector who had inspected the vehicle as also Ext.P7 inspection report submitted by him. There is absolutely no scintilla of material to even remotely suggest that the vehicle had any mechanical defect as to justify the hypothetical Crl.R.P.No.96/08 8 contention urged that such failure of the break system must have caused the accident and not the negligence of the driver, whoever he be. There is absolutely nothing available in evidence to suggest that the vehicle had any mechanical defect. 13. The learned counsel for the petitioner relying on the incongruity between the evidence of two witnesses as to whether the vehicle was coming from Mysore or from the workshop advances a contention that the vehicle must have had a mechanical defect and the vehicle must have been taken to the workshop and the theory of mechanical defect is indicated by such evidence of one of the witnesses that the vehicle was coming from the workshop. I am unable to accept this contention at all. The evidence of PW16 and Ext.P7 knock the bottom out of the theory that the vehicle was having any mechanical defect. 14. I am in these circumstances satisfied that the concurrent conclusions of the courts below that the accident had taken place on account of the rashness/negligence of the driver of the K.S.R.T.C bus is correct and the same does not warrant any interference in revision. 15. The learned counsel for the petitioner then raises a Crl.R.P.No.96/08 9 contention that at any rate the offence under Section 279 I.P.C is not made out. The crux of the contention is that under Section 279 I.P.C, driving must have been on a public way. The accident in this case took place not on any public way; but in the K.S.R.T.C. bus stand. The same cannot be reckoned as public way. Therefore, the conviction under Section 279 I.P.C is unjustified, it is urged. 16. I am unable to accept this contention. The expression public way used in Section 279 I.P.C must yield to a reasonable and rational understanding. Members of the public as also the buses coming into the bus station have a right to use the said way. Though inside the K.S.R.T.C. bus station, the way inside the bus station cannot be said to be anything other than a public way for the purpose of Section 279 I.P.C. Public way can be understood only to mean way in which the public have a right to use. It cannot for a moment be urged that the tracks inside the bus station in which buses are plied and passengers have to frequent are not public ways as to exclude the applicability of Section 279 I.P.C. The said contention cannot also succeed. 17. Lastly it is contended that the sentence imposed is excessive. The petitioner is a K.S.R.T.C bus driver and a Crl.R.P.No.96/08 10 conviction and sentence imposed on him would entail loss of employment for him, it is urged. 18. I have considered the nature of the allegations and the proof that has been offered in support of the allegations. I am unable to agree that in the facts and circumstances of this case a deterrent substantive sentence of imprisonment can be avoided. The nature of the allegations and the nature of the evidence, that has been tendered do unmistakably lead me to the conclusion that a deterrent substantive sentence of imprisonment is inevitable in the facts and circumstances of this case; but I take note of the fact that deterrence in a case like this does not necessarily depend on the length of the period that the offender spends behind the bars. Leniency can be shown on the question of sentence and the length of the period of imprisonment can be reduced, I am satisfied. 19. In the result: a) This Crl.R.P is allowed in part. b) The verdict of guilty, conviction under Section 279, 388 and 304A I.P.C are upheld. c) But the sentence imposed on the petitioner for the said offences is reduced to S.I for a period of three months, four Crl.R.P.No.96/08 11 months and six months respectively. The sentence shall run concurrently. d) The direction to pay a fine of Rs.5,000/- under Section 304A I.P.C and in default to undergo S.I for a period of three months is also upheld. 20. The petitioner shall now surrender before the learned Magistrate for execution of the modified sentence hereby imposed on or before 31/3/2008. Till that date, the sentence shall not be executed. If the petitioner does not so appear before the learned Magistrate on or before 31/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.96/08 12 Crl.R.P.No.96/08 13 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008