IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.REV.PET.NO. 1279 OF 2001() -------------------------------------------- CRA.83/1996 OF I ADDL. SESSIONS COURT, PALAKKAD ST.424/1993 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- N. BRAHMANANDAN, S/O. NARAYANAN, PUNNAMOOTTIL VEEDU, KALLOLI P.O., KARUNAGAPPALLY. BY ADV. SRI.G.JANARDHANA KURUP, SENIOR ADVOCATE RESPONDENT(S) - RESPONDENT STATE: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON 03/06/2009 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1279 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, Palakkad in Crl. Appeal No.83 of 1996 confirming conviction of petitioner for offences punishable under Sections 279, 337 and 338 of the Indian Penal Code (for short, “the Code”) and sentence for the offences under Secs.279 and 338 of the Code. 2. Case is that on 11.6.1992 petitioner drove a KSRTC bus, KL-5/707 from Karunagappally to Palakkad and at the place of occurrence that bus overtook a private bus which was parked on the side of the road and in that process hit another KSRTC bus No.KLX- 6386, which came from the opposite side. It resulted in hurt/grievous hurt to two passengers. It is alleged that petitioner drove the bus rashly and negligently so as to endanger human life. Courts below found in favour of the prosecution and convicted the petitioner for the said offences. He was sentenced to undergo simple imprisonment for three months and directed to pay fine of Rs,1,000/- each under Secs.279 and 338 of the Code. No separate sentence was awarded under Sec.337 of the Code. It is contended by learned counsel for petitioner that conviction and sentence entered on the petitioner are CRL. R.P. No.1279 of 2001 -: 2 :- not correct. 3. It is not disputed that petitioner was driving the offending bus at the relevant time. Evidence of P.Ws.2 and 9 is also in that line. P.Ws.1 to 15 including the driver of the bus on which the offending vehicle hit as well as passengers of both the vehicles were examined to prove the accident. They referred to the accident in general but did not specify the reason for the accident. They also stated about the hurt/grievous hurt they suffered in the accident. Exhibits P3 and P4 are reports prepared by P.W17, Assistant Motor Vehicle Inspector. Those documents and evidence of P.W.17 show that accident was not due to any mechanical defect of either of the vehicles. P.W.19 investigated the case and prepared Ext.P2, mahazar for scene of occurrence. Lie of the road is east-west. Tar portion at the place of occurrence has width of 7.20 metres. Accident spot is 1.50 metres north of southern tar end. Exhibit P2 would show that accident occurred towards the southern side of the road. Going by the evidence of P.Ws.1 to 14, offending bus driven by the petitioner was coming from west to east while the bus which was hit came from east to west. In other words, accident occurred on the wrong side of the bus driven by petitioner. 4. It is admitted that there was a private bus parked on the CRL. R.P. No.1279 of 2001 -: 3 :- side of the road. Its driver was examined as P.W.4. Going by his evidence his bus was parked on the northern side of the road. According to him the offending bus came from behind i.e., from west to east. It is the case of prosecution and spoken to by witnesses also that at the time of accident, offending bus overtook the stationary bus and hit the bus which came from east to west. Petitioner has a case that there was another bus which was proceeding ahead of him which overtook the stationary bus and it is on getting signal that he proceeded further and overtook the stationary bus. P.Ws.3 and 4 did not state so. P.W.3 denied that suggestion. There is no reliable evidence to show that there was any vehicle proceeding ahead of the petitioner as suggested by him. 5. Evidence on record shows that the bus driven by the petitioner has gone to its wrong side. That certainly is an indication of rashness and negligence on the part of the petitioner. There is no acceptable explanation as to what compelled him to take his vehicle to the extreme southern side which is his wrong side. In the circumstances finding of the courts below that petitioner drove the offending vehicle rashly and negligently so as to endanger human life does not require interference. 6. It is then argued by learned counsel that there is no CRL. R.P. No.1279 of 2001 -: 4 :- evidence to show that any of the passengers in the vehicle sustained hurt/grievous hurt. Learned counsel contended that the wound certificates are not proved in evidence. Though wound certificates of the injured are produced, that cannot be looked into as the same are not proved. But learned magistrate observed that the fact that wound certificates are not proved is not fatal since passengers in the vehicles who have given evidence stated that they suffered hurt/grievous hurt and that is not under challenge. I went through the evidence and found that P.W.7 stated that he had a fracture of the arm but a mere statement in that line is not sufficient. Proper evidence regarding grievous hurt ought to have been produced. Therefore conviction of the petitioner under Sec.338 of the Code cannot stand and that has to be altered to Sec.337 of the Code. 7. Learned magistrate has not awarded separate sentence for offence under Sec.337 of the Code. Sentence was awarded under Secs.279 and 338 of the Code. I found that conviction under Sec.338 of the Code is to be altered to Sec.337. Hence petitioner is liable to be sentenced for offences punishable under Secs.279 and 337 of the Code. It is submitted by learned counsel that petitioner has retired from service. It is also submitted that he is not shown to be involved in any other case. It is not disputed that at the place of occurrence CRL. R.P. No.1279 of 2001 -: 5 :- there was a stationary bus and petitioner was overtaking the same. In the facts and circumstances, I find that sentence of fine is sufficient in the ends of justice. Resultantly, revision is allowed in part to the following extent: (i) Conviction of petitioner under Sec.338 of the Code is altered to one under Sec.337 of the Code. (ii) Petitioner is directed to pay fine of Rs.1,000/- (Rupees One thousand only) under Sec.279 of the Code and in default to undergo simple imprisonment for one month. (iii) Petitioner is directed to pay fine of Rs.500/- (Rupees Five hundred only) under Sec.337 of the Code and in default to undergo simple imprisonment for two weeks. (iv) Petitioner is granted two months’ time from this day to deposit the fine in the trial court. Criminal Miscellaneous Petition No.6077 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.1279 of 2001 -: 6 :- THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.1278 OF 2001 =================== O R D E R 3RD JUNE, 2009