IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Crl.Rev.Pet.No. 1767 of 2002 ---------------------------------------- CRL.A.NO.68/1999 OF ADDL. DISTRICT & SESSIONS COURT, MANJERI, CC.NO.123/1996 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- JAYARAJAN, S/O.KUNJIKELU, THUNNATH HOUSE, PAYANAD AMSOM, ERNAD TALUK, MALAPPURAM. BY ADVS. MR.V.RAJENDRAN, MR.P.SAMSUDIN. RESPONDENT/RESPONDENT/COMPLAINANT/STATE: ---------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANDIKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1767/2002: ORDER ON CRL.M.P. NO. 9453/2002 IN CRL.R.P. NO. 1767/2002 DISMISSED 21/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1767 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 21st day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.123 of 1996 of the Judicial Magistrate of the First Class II, Perinthalmanna and the appellant in Crl.A.No.68 of 1999 of the Addl. District and Sessions Court Manjeri (Fast Track Court No.II). He was convicted under sections 279, 337, 338 and 304A IPC by the trial court and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 279 IPC, simple imprisonment for one month and to pay fine of Rs.500/-, in default to undergo simple imprisonment for one month under section 337 IPC, simple imprisonment for three months and to pay fine of Rs.500/-, in default to undergo simple imprisonment for one month under section 338 IPC and simple imprisonment for six months and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 304A IPC. Substantive sentences were ordered to run concurrently. His driving licence was suspended for a period of one year. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. CRRP 1767/02 2 2. The case of the prosecution, as shaped in evidence before the trial court in brief is this:- On February 28, 1996 at about 4.45 P.M. the accused drove a bus bearing registration No.KLW 2498 in a rash and negligent manner through the Melattur-Pandikkad public road and when it reached at Pandikkad, it went off the road, hit against a banyan tree and then crossed over the road and hit against the house of CW13 bearing door No.V/353 and in that accident several passengers sustained injuries and CW2 sustained grievous injuries and one Attakoya Thangal succumbed to the injuries and that thereby committed the offences punishable under sections 279, 337, 338 and 304A IPC. 3. When the accused appeared before the trial court, he pleaded not guilty to charge under sections 279, 337, 338 and 304A IPC. PWs.1 to 22 were examined and Exts.P1 to P14 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the trial court, the accused submitted that the accident occurred when he turned the bus to avoid hitting against a boy and that there was no negligence on his part. No defence evidence was adduced. The trial court, on an appreciation of the evidence, found the accused guilty of the offences punishable under sections 279, 337, 338 and 304A IPC, convicted him thereunder and sentenced him as aforesaid. On appeal, the lower appellate court confirmed CRRP 1767/02 3 his conviction and sentence. Now the accused has come up in revision.. 4. The following points arise for consideration in this case:- 1. Whether the conviction of the revision petitioner under sections 279, 337, 338 and 304A IPC rendered by the trial court which is confirmed in appeal by the lower appellate court can be sustained? 2. Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? 5. On the side of the prosecution, PWs.1 to 22 were examined and Exts.P1 to P14 and MOs.1 to 4 were marked to prove the guilt of the accused. The case of the prosecution is that on February 28, 1996 at about 4.45 P.M. the accused drove a bus bearing registration No.KLW 2498 in a rash and negligent manner along the Melattur-Pandikkad public road and when it reached at Pandikkad, it went off the road, hit against a banyan tree on the side of the road and then crossed over the road hit against the house of CW13. PWs. 1 to 3, 5 and 8 sustained injuries in the accident and CW2 sustained grievous injuries. PW1 who gave F.I.S. to the police testified that the accident occurred due to the high speed of the bus. He stated that on seeing the students trying to board the bus from the bus stop, the accused drove the bus in a high speed and that is the reason for the accident. As he was not able to identify the accused, he was declared hostile. But, he supported the case of the prosecution on all other aspects. His evidence is CRRP 1767/02 4 supported by PWs.2, 3, 5 and 8 who are the passengers of the bus and injured in the accident. PWs.4, 6, 7, 9, 10 and 11 the other injured persons turned hostile, but they submitted that they also sustained injuries in the accident. The evidence of PWs.1 to 3, 5 and 8 clearly shows that the accident occurred due to the negligence on the part of the accused. 6. There is also another aspect. The bus went off the road, hit against a banyan tree and then crossed over the road and hit against the house of CW13. The accident itself shows that there was negligence on the part of the driver of the bus. The version of the accused that the accident occurred when he was trying to avoid hitting a boy was not proved by any evidence adduced on the side of the accused. Therefore, I am inclined to uphold the finding of the trial court, which is confirmed by the lower appellate court that the accident occurred due to the rash and negligent driving of the revision petitioner/accused. It is not disputed and proved by the evidence adduced on the side of the prosecution that PWs.1 to 3, 5 and 8 sustained simple injuries and CW2 sustained grievous injuries in the accident. It is also admitted that one person named Atta Koya Thangal died as a result of the injuries sustained in the accident. Therefore, I confirm his conviction of the revision petitioner under sections 279, 337, 338 and 304A IPC. CRRP 1767/02 5 7. As regards the sentence, the counsel for the revision petitioner submitted that the accident occurred in 1996 and that the injured as well as the legal heirs of the deceased received compensation from the Motor Accidents Claims Tribunal and that therefore, leniency may be shown to the revision petitioner/accused. Seven persons sustained injuries and one person died in the accident. Taking into consideration all these aspects, simple imprisonment for six months imposed under section 304A IPC is reduced to three months. The sentence imposed under sections 279, 337 and 338 IPC and the fine imposed under section 304A IPC are confirmed. Substantive sentences shall run concurrently. The direction of the trial court to suspend the driving licence for one year is also confirmed. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE mn