IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 Crl.Rev.Pet.No. 2970 of 2009() ------------------------------------------- CRA.400/2007 of ADDL. SESSIONS COURT (ADHOC)I , KOZHIKODE ST.854/2004 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------- GIRISH, S/O.SREEDHARAN NAIR, PULLATHIKKAL HOUSE, MADAVOOR AMSOM, MUTTACNHERI DESOM, KOZHIKODE. BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE -------------------------- 1. STATION HOUSE OFFICER, CITY TRAFFIC POLICE STATION, KOZHIKODE. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.GOPINATHAN, J. ================ Crl.R.P.No.2970 of 2009. ================ Dated this the 23rd day of September, 2009 O R D E R The revision petitioner is the accused in ST.No.854/2004 on the file of the Judicial First Class Magistrate-IV, Kozhikode. The Sub Inspector of Police, City Traffic Police Station, Kozhikode in Crime No.2119/03 prosecuted the revision petitioner alleging offence under Sec.279, 337 and 338 IPC. It was alleged that at 9.10 am. on 20.9.2003 the revision petitioner drove a stage carriage bus bearing Regn.No.KL-11-C/5695 along Kozhikode- Wayanad road in a rash and negligent manner so as to endanger human life and dashed on the back side of the ongoing bus bearing Regn.No.KL-18/819 and as a result both the buses sustained damages and three passengers in the bus driven by the revision petitioner and the conductor of the ongoing bus sustained simple injuries. Another Crl.R.P.No.2970 of 2009. -: 2 :- passenger in the ongoing vehicle sustained grievous hurt. 2. The learned Magistrate after taking cognizance of the offences, issued process, responding to which the revision petitioner entered appearance. After furnishing copy of the charge sheet and other connected records the contents of the charge was read over and explained to the revision petitioner. He pleaded not guilty. Hence he was sent for trial. On the side of the prosecution Pws.1 to 10 were examined and Exts.P1 to 20 were marked. After closing the evidence for the prosecution the revision petitioner was questioned under Sec.313 Cr.P.C. He took up a defence that the ongoing bus suddenly applied the brake and as a result the bus driven by him slightly hit on the rear of the ongoing bus. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived a finding of guilty. Consequently the revision petitioner was convicted for the above said offences and Crl.R.P.No.2970 of 2009. -: 3 :- sentenced to simple imprisonment for three months each for offences under Sec.279 and 337 IPC and simple imprisonment for six months and fine of Rs.1,000/- under Sec.338 IPC. Though he assailed the above conviction and sentence in appeal as Crl.Appeal No.400/2007 he was unsuccessful. Now assailing the legality, correctness and propriety of the above conviction and sentence as was confirmed in appeal, this revision petition was preferred. 3. I heard the learned counsel for the revision petitioner at length and perused the impugned judgment. 4. The accident as alleged by the prosecution is not at all disputed. On the other hand it was admitted by the revision petitioner when he was questioned under Sec.313 Crl.P.C. and further it was proved by the evidence of Pws.1 to 4, 6 and 7. 5. The question then arises is whether the revision petitioner was the driver of the bus and whether he was Crl.R.P.No.2970 of 2009. -: 4 :- rash or negligent in driving the bus. Pws.4 and 7 who were passengers in the bus driven by the revision petitioner and Pw6, the conductor of the ongoing bus had identified the revision petitioner as the driver of the offending bus. Their evidence, which remain unimpeached was further supported by Ext.P15 trip sheet. Hence the courts below were right in arriving the conclusion that the revision petitioner was the driver of the offending vehicle. 6. The fact that the bus driven by the revision petitioner dashed on the rear side of the ongoing vehicle itself would speak the rashness and negligence of the revision petitioner. Had he been cautious as a prudent man and driving his vehicle at a controllable speed at a safe distance, even if the ongoing vehicle stopped all on a sudden, the revision petitioner could have averted the accident. Exts.P16 and P17 reports of the Assistant Motor Vehicles Inspector coupled with Ext.P14, the body mahazar Crl.R.P.No.2970 of 2009. -: 5 :- would show that both the vehicles sustained extensive damages. The nature of the damage sustained to both the vehicles would show that in fact, the revision petitioner was at very high speed and the bus was beyond his control. Though he had contended that the ongoing vehicle stopped all on a sudden, other than the suggestion, there is no evidence at all. It is also not a hit of mild nature, but a heavy hit. So, from the facts and circumstances revealed out, it had to be concluded that the revision petitioner was driving the bus in a rash and negligent manner as concurrently found by the courts below. 7. Exts.P16 and P17 would show that both the vehicles involved in the accident had no mechanical defect. So, mechanical defect could not be attributed as a cause for the accident. 8. The evidence of Pws.1, 2, 4, 6 and 7 coupled with the evidence of Pws.5 and 8 doctors supported by Exts.P2, Crl.R.P.No.2970 of 2009. -: 6 :- P3, P5, P6, P7, P8, P9, P10 and P11 would show that Pws.1, 3, 4, 6 and 7 had sustained simple injuries. The evidence of Pws.2 and 5 supported by Ext.P4 would show that Pw2 had sustained grievous hurt. This being the evidence on record, the courts below had correctly analyzed the evidence on record and rightly concluded that the prosecution had succeeded to establish that the revision petitioner was driving the stage carriage in a rash and negligent manner so as to endanger human life and because of the rash and negligent driving the bus driven by him rammed on the rear of the ongoing bus and as a result Pws.1, 3, 4, 6 and 7 had sustained simple injuries and Pw2 had sustained a grievous hurt and both the buses got extensive damages. The conviction under Sec.279, 337 and 338 is based upon cogent evidence. I find no error, illegality or impropriety in the impugned judgment regarding the conviction so as to interfere in revision. Crl.R.P.No.2970 of 2009. -: 7 :- 9. As regards the sentence, I find that the courts below had omitted to note that the sentence awarded for offence under Sec.338 IPC is beyond the limit prescribed under Section 262(2) Crl.P.C. In a summary trial, substantive sentence shall not exceed three months. But, for the offence under Sec.338 IPC, sentence of simple imprisonment for six months is awarded. It is beyond the limit restricted under Sec.262(2) Crl.P.C. It is not sustainable. Whereas the sentence awarded for offences under Sec.279 and 337 are just and appropriate, I find that the sentence of simple imprisonment for three months for offence under Sec.338 also would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction under Sec.279, 337 and 338 are confirmed. The sentence for offence under Sec.279 and 337 is also confirmed. The sentence for offence under Sec.338 IPC is reduced to simple imprisonment for three months. The fine Crl.R.P.No.2970 of 2009. -: 8 :- imposed by the courts below is sustained. The sentences shall run concurrently. The revision petitioner should surrender before the trial court forthwith for suffering sentence. P.S.GOPINATHAN, JUDGE. Kvs/-