IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.Rev.Pet.No. 98 of 2000() ---------------------------- CRA.31/1996 of SESSIONS COURT, KOLLAM CC.1688/1992 of MUNSIFF – MAGISTRATE COURT, PARAVOOR. .................... PETITIONER(S): APPELLANT:ACCUSED: ------------------------------------------------------------ ASOKAN, S/O.PURUSHOTHAMAN, DERSANAVATTOM, NAGAROOR VILLAGE. BY ADVS. MR.NAGARAJ NARAYANAN, MR.SAIJO HASSAN, MR.A.S.SABU, MR.VIMAL KUMAR.A.V., MR.A.G.GIRISH KUMAR, MR.S.RAJEEV. RESPONDENT(S): RESPONDENT:COMPLAINANT: ------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PARAVOOR (CRIME NO.57/92 OF PARAVOOR POLICE STATION) BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.98 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 3rd April, 2009 ORDER Challenge in the revision is against the concurrent verdict of guilt rendered against the revision petitioner/accused for the offences punishable under Sections 279, 337 and 304 I.P.C. He was prosecuted for the aforesaid offences along with Section 134 (a) and (b) of the M.V.Act. He pleaded not guilty to the offence. The learned Magistrate, after trial, found him guilty of the offences under Sections 279, 337 and 304 I.P.C. and convicted him thereunder sentencing him to undergo rigorous imprisonment for three months under Section 279 I.P.C., six months under Section 337 I.P.C. and one year under Section 304 I.P.C. directing him to undergo the sentences concurrently. He was not found guilty of the offences under Section 134 (a) and (b) of the M.V.Act and acquitted of such offences. In appeal, the learned Sessions Judge confirmed the conviction and also the sentence without any modification. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, he has preferred this revision. 2. The gist of the prosecution case is that on 21.3.1992 the accused drove a tourist bus, namely, A.K.M.bus bearing Reg.No.KEV Crl.R.P.No.98/2000 - 2 - 2121, from west to east, through Paravoor-Parippally public road in a rash and negligent manner at an enormous speed endangering human life. When the vehicle reached Puthenkulam at about 1.45 P.M., in view of the rash and negligent driving of the vehicle by the accused, it went to the extreme left side of the road, hit against an electric post situate on the northern side, far away from the tarred portion of the road, and a passenger in the vehicle travelling in the foot board sustained fatal injuries and was thrown out of the bus, and he succumbed to the injuries sustained instantaneously at the spot. Two other passengers sitting on the left side of the bus also sustained fatal injuries on account of the collision of the bus with the electric post. They too after being taken to hospital on account of the fatal injuries sustained, breathed their last. Some other passengers travelling in the bus too sustained injuries. A crime was registered suo motu by P.W.15 who then was the S.I.of Police, Paravoor after he revealed the spot on getting information of the occurrence. The investigation of the trial was taken over and conducted by P.W.16, the then C.I. of Police, Paravoor. During the course of the investigation, the accused was arrested and later enlarged on bail. After completing the investigation, P.W.16 laid the charge indicting Crl.R.P.No.98/2000 - 3 - the accused for the offences punishable under Sections 279, 337 and 304 of the I.P.C. and Section 134 (a) and (b) of the M.V.Act. 3. The accused, on appearance before the court, pleaded not guilty when the offences were made known. Prosecution examined P.Ws.1 to 16 and got marked Exts.P1 to P14 to prove his guilt. The accused during the course of the examination of the prosecution witnesses and also when questioned under Section 313 Cr.P.C. maintaining his innocence contended he was not the driver of the bus involved in the occurrence. Though such a defence was canvassed, no defence evidence was adduced. 4. The learned Magistrate, after appreciating the materials, found that the accused was the driver of the offending bus involved in the occurrence which resulted death of three persons and also injuries to several others and the occurrence arose on account of his culpable rash and negligent driving of the bus at enormous speed endangering human life. The accused was found guilty of the offences under Sections 279, 337 and 304 I.P.C. and convicted and sentenced of those offences as indicated earlier. The learned Sessions Judge, after reappreciation of the evidence, in appeal, confirmed the conviction, and upheld the sentence without modification. Crl.R.P.No.98/2000 - 4 - 5. I heard the learned counsel for the accused and also the Public Prosecutor. 6. Learned counsel for the accused assailed the conviction contending there was absolute paucity of evidence establishing the identity of the accused as the driver of the bus involved in the occurrence. Other than the evidence of P.W.12, a headload worker who claimed to be a passenger in the bus, there was nothing on the materials produced by the prosecution to fix the accused as the driver of that bus. P.W.12 who identified the accused, according to the learned counsel, carried out his engagement as a headload worker at a place in Kallambalam far away from the place of occurrence and as such his evidence should not have been received by the court to establish that the accused was the driver of the bus. It has also come out during the cross examination of P.W.12 that after the occurrence he saw the accused for the first time before the court. Relying on Vijayan v. State of Kerala [1999(1) KLT 760(SC) ], it is contended by the learned counsel, such identification made by the accused should not have been relied on to hold that the accused was the driver of the bus involved in the occurrence. No identification parade was conducted in the case, and so much so, the identification of the Crl.R.P.No.98/2000 - 5 - accused by a solitary witness that too long after the occurrence before the court should not have been accepted, submits the learned counsel relying on Raju v. State of Maharashtra [(1998) 1 S.C.C. 169]. Over and above disputing the identity of the accused as the bus driver, the learned counsel contended that there was nothing on the materials to conclude that the driver had driven the vehicle in a rash and negligent manner endangering human life and that on account of his reckless driving, the accident occurred. Absence of tyre marks at the sport, according to the counsel, is indicative that the vehicle was not driven at a high speed. In the vehicle, a marriage party travelled and they were returning after attending a marriage with a car just behind with a videographer, taking pictures with his video. Some of the passengers travelling in the foot board get their pictures in the video stretched out of the bus their person and because of their negligence, one among them hit against the electric post and the accident occurred for which the driver of the bus could not be held culpable, is the submission of the learned counsel. At any rate, on the materials produced, the prosecution has not succeeded in proving culpable criminal negligence on the part of the driver and also that his rash and negligent driving had resulted the accident. So much so, it is Crl.R.P.No.98/2000 - 6 - submitted that the conviction founded against the accused for the offences under Sections 279, 337 and 304 I.P.C. is liable to be interfered, allowing the revision. 7. I have perused the records of the case giving due consideration to the submission of the counsel. Perusing the records, it is seen, the prosecution had relied on the evidence of P.W.11, the owner of the bus and also P.W.12, a passenger to prove that the accused drove the bus as its driver when the accident occurred. P.W.11, the owner of the bus had given evidence before the court that the vehicle was taken in the morning by the accused. When a suggestive question was put to him that the vehicle was not driven by the accused on the date of occurrence and that he had spoken to the contrary in view of his enmity towards the accused, the witness asserted it was the accused who drove that vehicle. Nothing has been brought out during the cross examination of P.W.11 to hold that he had any axe to grind against the accused other than a suggestion that his assertion before the court that the accused was the driver of the bus on account of previous enmity. What was the reason thereof has not been shown. Even when questioned under Section 313 Cr.P.C. the accused had not offered any explanation to show that the Crl.R.P.No.98/2000 - 7 - owner had any grudge towards him to state falsely that he was the driver of the bus. The best person to speak who drove the vehicle, needless to point out, is the owner of the bus. It is too much to believe that the owner would make a false assertion that the accused was the driver if actually he was not so and, further, to perjure against him before a court of law. I am not relying upon Exts.P7 and P8 which are purported to have been received from the owner during the investigation of the crime, wherein it is stated that the owner had given the particulars of the accused as the driver since the collection of such materials though permitted by the M.V.Act, cannot be used as evidence in a criminal trial. Section 161 of the Cr.P.C. prohibits getting of a signed statement from a witness and as such Ext.P8 statement purported to have been collected from the owner to fix the identity of the accused as driver naturally should be eschewed from consideration. Leaving aside Exts.P7 and P8, the evidence of the owner before the court that the accused was the driver of the bus, which is found reliable, is more than sufficient to hold so, and the denial thereof canvassed by the accused is unworthy of any merit. P.W.12, a passenger in the bus had also given evidence that the bus was driven by none other than the accused. He gave graphic Crl.R.P.No.98/2000 - 8 - description as to how the occurrence took place. While the bus was heading its way, seeing a dike in the road for laying pipe, the driver recklessly severred the vehicle to the left, and it went only the tarred portion and collided with a post situate on the northern side of the road. The bus was moving at enormous speed and it could be stopped only after covering some distance is evident from the fact that the driver could not control the vehicle even at the time when it collided against the post. P.W.12 spoke not only about the reckless driving of the vehicle by the driver but also asserted before court that it was driven by the accused. He also stated that he knew the accused from six/seven years earlier to the occurrence and so much so, this was a case where no identification parade was called for. His assertion that he knew the accused, it is seen, was found reliable, trustworthy and convincing to the learned Magistrate who had the opportunity to watch the demeanour and deportment of the witness while giving evidence. The learned Sessions Judge who reappreciated the evidence in appeal also found his testimony reliable and acceptable. After going through his evidence, I find no reason to take a different view. The evidence of P.W.12 leave no room for any doubt that it was the accused who drove the vehicle involved in the accident and the Crl.R.P.No.98/2000 - 9 - occurrence took place due to the rash and negligent driving of the bus by its driver. The features noticed by P.W.15, the S.I. of Police at the spot while he prepared inquest over the deadbody of the passenger who was thrown out of the bus and died at the spot, clearly spell out that the left side of the bus hit against the electric post. The damages caused to the electric post and the materials recovered from the bus etc. as stated in column 8 and 9 in the inquest report of P.W.6 amply demonstrate that the vehicle was driven with such recklessness and having no regard for the safety of the passengers and public. The proved facts and circumstances involved in the case as borne out by the materials lead to the irresistible conclusion that the accused was guilty of the offences under Sections 279 and 337 and 304 of the I.P.C. as found by the two courts below and the findings of the courts below deserve only to be upheld, and I do so. 8. The learned counsel has taken exception that the benevolent provisions of the Probation of Offenders Act had not been extended to the accused and no reason was stated for its non- applicability. Having regard to the proved facts and circumstances of the case where three persons lost their lives in the prime of their life Crl.R.P.No.98/2000 - 10 - solely on account of the reckless driving of the bus, in the backdrop that motor vehicles on account of culpable criminal negligence and rash driving by their drivers causing havoc and destruction of families, have turned out to be mechanised killers. I find that this is not a fit case which warranted the consideration of the Probation of Offenders Act. Punishment imposed against the accused considering the gravity of the offences by no stretch of imagination can be considered as excessive or unreasonable. No interference with the sentence is called for. Revision is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE