IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 Crl.Rev.Pet.No. 2417 of 2005() ------------------------------ CRA.84/2000 of SESSIONS COURT, THALASSERY CC.507/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- K.K.PREMARAJAN, S/O.NARAYANAN, ANDOOR AMSOM DESOM, THALIYIL, P.O.PARASSINIKKADAVU KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): RESPONDENT/COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY THE S.H.O. VALAPATTANAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.2417 OF 2005 -------------------------------------------------- Dated this the 29th day of January, 2009 O R D E R Revision petitioner is challenging his conviction and sentence in C.C. 507 of 1997 for the offence under section 279, 337 and 338 of Indian Penal Code by Judicial First Class Magistrate-II, Kannur as confirmed by Sessions Judge, Thalassery in Crl. Appeal 84 of 2000. Prosecution case was that revision petitioner was the driver of the bus KL-13/B.3074 on 10.11.1996 and it was proceeding from Parassinikkadavu towards Kannur and when the bus reached Chungam at about 7.45 a.m. along National High way, due to the rash and negligent driving of the bus by the revision petitioner, it hit on the lorry KRZ-3099 and caused hurt and grievous hurt to the passengers of the bus and thereby committed offences under section 279, 337 and 338 of Indian Penal Code. Revision petitioner pleaded not guilty. Prosecution examined 14 witnesses and marked 23 exhibits. Revision petitioner did not adduce any defence evidence. Learned Magistrate on the evidence of PWs 6 and 8 found that revision petitioner was the driver of the bus and due to his rash and negligent driving, the bus hit on the lorry and CRRP 2417/2005 2 caused hurt to PWs 4 to 10 as well as eight other passengers and they sustained either hurt or grievous hurt as proved by the evidence of PW11, the Doctor and Exts.P3 to P19 wound certificates and convicted the revision petitioner. He was sentenced to simple imprisonment for two months for the offence under section 279 and a fine of Rs.500/- for the offence under section 337 and fine of Rs.1000/- for the offence under section 338 of Indian Penal Code. Though revision petitioner challenged the conviction, learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner vehemently argued that revision petitioner did not admit that he was the driver of the bus and there is no evidence to prove that he was driving the bus. It was also argued that though Courts below found that revision petitioner did not dispute the identity, when PWs 6 and 8 were examined, they did not identify revision petitioner as the driver of the bus and therefore based on the evidence of PWs 6 and 8, Courts below should not have found that revision petitioner was the driver of the bus. It was further argued that though Ext.P23(a) entry in Ext.P23 trip sheet was CRRP 2417/2005 3 relied on at best it could be only a secondary evidence and in the absence of primary evidence of the author of the trip sheet or the owner or the conductor of the bus at that time Courts below should not have found that revision petitioner was driving the bus. Learned counsel also argued that even if the evidence of PWs 6 and 8 is relied on, it is insufficient to prove that revision petitioner was driving the bus rashly and negligently so as to endanger human life or by such driving caused hurt and grievous hurt to the passengers and therefore the conviction is not sustainable. Learned counsel submitted that in any case sentence awarded is excessive. It was argued that when for the major offences under section 338 and 337 of Indian Penal Code only fine was awarded, learned Magistrate was not justified in awarding a substantive sentence of imprisonment of two months for the offence under section 279 of Indian Penal Code and therefore the sentence is to be modified. Learned counsel finally submitted that as the incident was in 1996 at this distant point of time revision petitioner may not be sent to prison when he was not involved in any offence of this nature subsequently. 3. Though learned counsel disputed the identity of the revision petitioner as the driver of the bus involved in the CRRP 2417/2005 4 incident, on the evidence I find no reason to interfere with the findings of the Courts below that revision petitioner was the driver of the bus at the relevant time. Apart from Ext.P23(a) entry in the trip sheet, which cannot be disputed when it shows that revision petitioner was the driver, Ext.P10 wound certificate proved by the evidence of PW11, the Doctor, establish that Ext.P10 wound certificate was prepared by PW11 after examining the revision petitioner. It is noted in Ext.P10 that the injured was the driver. Moreover, intimation sent to the police from Koyili hospital, where the injured were examined by PW11, shows that names of the fifteen injured who were treated there, include revision petitioner as the seventh one and revision petitioner was shown as the driver. Though these materials were omitted to be taken note of by the Courts below, in the light of these materials I cannot agree with the submission of the learned counsel that revision petitioner was not the driver of the bus at the relevant time. 4. The evidence of PWs 6 and 8 corroborated by Exts.P16 and P18 wound certificates proved by the evidence of PW11 establishes that they were also passengers of the bus. The fact that PWs 6 and 8 were passengers of the bus was not CRRP 2417/2005 5 disputed at the time when they were cross-examined. Evidence of PWs 6 and 8 establish that the lorry on which the bus hit at Chungam was proceeding in front of the bus and the bus was being driven in high speed and negligently. The evidence would establish that if the bus was being driven with care and caution and with reasonable speed, even if the lorry suddenly stopped, as claimed, the bus would not have hit on the lorry. Therefore from the evidence of PWs 6 and 8, Courts below rightly found that the incident occurred only due to the rash and negligent driving of the bus by revision petitioner. Evidence also establish that by such driving hurt and grievous hurt was caused, as proved by evidence of PW11 and Exts.P3 to P19 wound certificates to PWs 4 to 10. In such circumstances conviction of the revision petitioner for the offence under section 279, 337 and 338 of Indian Penal Code is perfectly legal. 5. Then the question is regarding the sentence. Though revision petitioner was convicted for the offence under section 338 and 337 finding that by such rash and negligent driving he caused grievous hurt to the passengers of the bus and also caused hurt to the passengers by such rash and negligent driving, sentence awarded was only the maximum fine provided CRRP 2417/2005 6 for the offences. It is based on this leniency shown by the learned Magistrate, revision petitioner argued that sentence for the offence under section 279 of IPC is also to be modified to fine. Though it is not a justifiable ground by itself considering the fact that the incident occurred in 1996 and revision petitioner was not involved in any other offence of this nature subsequently and was under the threat of this sentence for more than a decade interest of justice will be met if the sentence for the offence under section 279 is modified to the maximum fine provided for the offence. Therefore the sentence warrants interference to that extent. Revision is allowed in part. Conviction and sentence of the revision petitioner for the offence under section 337 and 338 of Indian Penal Code and conviction for the offence under section 279 of Indian Penal Code confirmed. Sentence for the offence under section 279 of Indian Penal Code is modified to fine of Rs.1000/- and in default simple imprisonment for one month. M. SASIDHARAN NAMBIAR, JUDGE okb