IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 513 of 2002 -------------------------------------------- CC.65/1988 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM CRA.43/1996 of ADDL.SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONERS/APPELLANT/ACCUSED: SKARIA @ KUNJUMON, S/O.MATHAI, THONIKUZHIYIL VEEDU, MATTAKARA KARA, AKALAKUNNAM VILLAGE. BY ADV. SRI.P.RAVINDRA BABU SRI.SURIN GEORGE IPE RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM (CIRCLE INSPECTOR OF POLICE, PAMPADY) BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3375/2002 IN CRRP 513/2002 DISMISSED 21.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.513 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.65/1988 on the file of Chief Judicial Magistrate's Court, Kottayam, is challenging the conviction and sentence for the offences under Sections 279, 337, 338 and 304(A) of Indian Penal Code. Petitioner was driving the Bus KRK 6377 by name Devan along Pallickathodu-Medical College Road from south to north at about 5 p.m. on 15.10.1987. Another bus, by name Jerrymon, came from opposite side, from north to south. Prosecution case is that when petitioner was driving the bus KRK 6377 in a rash and negligent manner so as to endanger human life, fully loaded by passengers and without reducing the speed, negligently took the vehicle towards the western road margin and in that process, because of the over speed, the bus capsized and rolled to the west, causing death of two passengers and grievous hurt and hurt to others. It is alleged that CRRP 513/02 2 petitioner, thereby, committed offences under Sections 279, 337, 338 and 304(A) of Indian Penal Code. 2. Petitioner pleaded not guilty of all the offences. Petitioner contended that he was not driving the vehicle rashly or negligently and at the scene of occurrence, Jerrymon bus came from the opposite side and when petitioner gave side to that bus, by taking the bus towards the road margin, because it was rainy season, a portion of the road margin slided towards the west, which was lying on a lower level, the bus capsized causing death of two passengers and grievous hurt and hurt to the other passengers and it was not due to any negligent driving, but an inevitable accident. 3. Prosecution examined 32 witnesses and marked 49 exhibits, including Exhibits P9 to P49 wound certificates and Exhibits P5 and P6 postmortem certificates of Vincy and Shinu Rani. 4. Learned Chief Judicial Magistrate, on the evidence, found the petitioner guilty of all the CRRP 513/02 3 offences and convicted and sentenced him to rigorous imprisonment for one year for the offence under Section 304(A) of Indian Penal Code, rigorous imprisonment for six months for the offence under Section 338 of Indian Penal Code and rigorous imprisonment for three months each for the offences under Sections 279 and 337 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.No. 43/1996. Learned Additional Sessions Judge, on re- appreciation of the evidence, confirmed the conviction and sentence and dismissed the appeal. This revision is filed challenging the concurrent conviction and sentence. 5. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 6. Learned counsel pointed out that appreciation of evidence by the courts below was perverse, as material aspects were not properly considered. It is contended that evidence of PWs 2 and 3, the passengers of the bus driven by the CRRP 513/02 4 petitioner, establish that the incident was only an accident and was not caused due to any negligent driving. It was argued that the scene mahazar and the oral evidence establish that the incident occurred only due to the sliding of a portion of the mud road when petitioner took the bus towards the road margin, as Jerrymon bus came from the opposite side and in such circumstances, conviction of the petitioner is not sustainable. 7. Learned Chief Judicial Magistrate found the petitioner guilty of the offences and learned Additional Sessions Judge upheld the findings. But, on going through the evidence, I cannot agree with the findings. Exhibit P8 scene mahazar shows that the road at the scene of occurrence is lying north- south. The width of the tar road was 4.45 metres. There was a road margin of 2.15 metres on the east and 1.4 metres on the west. Petitioner was admittedly driving the bus KRK 6377 from south to north. Jerrymon bus was coming from north to south. Prosecution witnesses, relied on by the courts CRRP 513/02 5 below, also deposed that the bus capsized when Devan bus was proceeding after crossing Jerrymon bus, which was coming from the opposite side and when proceeded along the mud road portion, the bus capsized. Apart from giving evidence that the bus was driven by the petitioner in high speed, there is no evidence to prove that the incident occurred due to rash and negligent driving of the petitioner. On the other hand, evidence establish that another bus was coming from the opposite side and the bus driven by the petitioner capsized on the western side, which was its proper side. As stated earlier, Exhibit P8 scene mahazar shows that the road margin is 1.4 metres. The bus capsized at the point when petitioner took the bus along the road margin. The evidence establishes that it was so taken as Jerrymon bus was coming from the opposite side. At best, it can be said that petitioner had driven the bus in high speed and did not reduce the speed at that point. But, for the reason that petitioner was driving the bus in CRRP 513/02 6 speed, normally, the mud road will not slide or the bus capsize. If, at the point when petitioner had taken the bus to the road margin, to avoid collusion with Jerrymon bus or while giving space to Jerrymon bus and then the road margin on the western side slided towards the west and as a result, the bus capsized, it cannot be said that the incident occurred due to the rash and negligent driving of the petitioner. That exactly is the position, as is clear from the evidence. 8. Exhibit P1 F.I. Statement of PW1, which is the first version of the incident, is to the effect that when Jeerymon bus came from the opposite side, Devan bus proceeded towards the west along the mud road and then the road slided and the bus capsized. It supports the defence case. When the entire evidence is appreciated in the proper perspective, it cannot be conclusively found that the incident was due to any rash and negligent driving of the bus by the petitioner. In any event, petitioner is entitled to get the benefit of reasonable doubt CRRP 513/02 7 that the bus would have capsized when the road margin, on the western side, along which petitioner had taken the bus to give space to the bus which was coming from the opposite side, to avoid collusion, slided suddenly and caused the bus to capsize. If that be so, conviction of the petitioner is not sustainable, even though two passengers had died and grievous hurt and hurt were caused to many of the passengers. Revision is allowed. Conviction of the petitioner for the offences under Sections 279, 337, 338 and 304(A) of Indian Penal Code in C.C. No.65/1988 by Chief Judicial Magistrate, Kottayam, as confirmed by Additional Sessions Judge, Kottayam in Crl.A.No.43/1996 is set aside. Petitioner is found not guilty of the offences. He is set at liberty. Bail bond executed by the petitioner stands cancelled. 21st May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 513/02 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.513 of 2002 -------------------------- ORDER 21st May, 2010