IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 618 of 2001() ----------------------------- CRA.23/1998 of ADDL.SESSIONS COURT, PARAVUR CC.201/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): ----------------------------------- RAJAN, S/O. GOPALAN, AGED 41 YEARS, CHANNAYIL HOUSE, NJARACKAL, ERNAKULAM DISTRICT. BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE RESPONDENT(S): ----------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.I. OF POLICE, KURUPPAMPADY. BY P.P. SRI.C.M. KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2974 OF 2001 IN CRL.R.P.NO.618 OF 2001: CLOSED 17/6/2009 SD/- R. BASANT, JUDGE. //TRUE COPY// R. BASANT, J. ------------------------------------------------- Crl.R.P. No.618 of 2001 ------------------------------------------------- Dated this the 17th day of June, 2009 ORDER The petitioner in this revision petition assails the concurrent verdict of guilty, conviction and sentence in a prosecution for offences punishable under Secs.279, 337, 338 and 304A IPC. He faces a sentence of simple imprisonment for six months, three months, six months and one year respectively for the said offences. 2. The prosecution alleged that the petitioner was driving the bus involved in the accident from east to west along the Aluva – Munnar road. An autorikshaw driven by P.W.2 in which P.Ws.1, 3, 6 and the deceased were passengers was proceeding in the opposite direction. According to the prosecution, the vehicle was driven by the petitioner in a rash Crl.R.P. No.618 of 2001 -: 2 :- and negligent manner at an excessive speed. On account of such rashness, negligence and excessive speed, the vehicle driven by the petitioner allegedly strayed to the wrong side (northern side) of the road and hit against the autorikshaw driven by P.W.2 which was coming in the opposite direction from west to east along the northern side of the road. This resulted in injuries to all the five who were in the autorikshaw. The deceased succumbed to his injuries. Others suffered grievous as well as simple injuries. 3. Ext.P1 – First Information Statement was lodged by P.W.1 – one of the passengers. P.W.5 – the Assistant Sub Inspector of Police registered Ext.P11 – FIR. P.W.17 completed the investigation and filed the final report. 4. Cognizance was taken by the learned Magistrate. The accused denied the offences alleged against him. Thereupon, the prosecution examined P.Ws.1 to 17 and proved Exts.P1 to P13. No material objects were marked. 5. P.W.2, as stated earlier, is the driver of the autorikshaw who also suffered injuries. P.Ws.1 to 3 and 6 who have suffered injuries were travelling in the autorikshaw along with the deceased. P.Ws.1 to 3 supported the prosecution version about the identify of the driver as also the cause of the accident; but Crl.R.P. No.618 of 2001 -: 3 :- P.W.6, though he supported the prosecution version about the identity of the accused, pleaded ignorance about the cause of the accident. P.Ws.4 and 7 are the independent eye witnesses examined by the prosecution. They turned hostile to the prosecution completely. P.Ws.5 and 8 are the attestors to the inquest report. P.Ws.9, 11 and 12 are the Doctors who examined the injured persons and issued Exts.P3 to P5 and Ext.P8 wound certificates. P.W.10 is the attestor to the scene mahazar Ext.P6 describing the scene of the accident. P.W.11 Doctor conducted the post-mortem examination and issued Ext.P7 post-mortem certificate. P.W.13 is the Motor Vehicle Inspector who inspected both the vehicles and issued Exts.P9 and 10 inspection reports. P.W.14 Head Constable recorded Ext.P1 First Information Statement. P.W.15 is the Assistant Sub Inspector of Police who had registered Ext.P11 - FIR on the basis of Ext.P1 First Information Statement. P.W.16 is the Secretary of a Co- operative Society which owns the bus involved in the accident. He did not state that the vehicle was in the charge of the petitioner on the date of the accident. P.W.17 Investigating Officer conducted the investigation and filed the final report. He seized Ext.P12 trip sheet which shows that the petitioner was the driver of the vehicle involved in the accident. He seized the Crl.R.P. No.618 of 2001 -: 4 :- same under Ext.P13 seizure mahazar. 6. After the close of the prosecution evidence, the accused was examined under Sec.313 Cr.P.C. The accused took up a defence of total and flat denial. In the course of the examination of the witnesses or when examined under Sec.313 Cr.P.C., no constructive defence as to what really had happened was not advanced by the accused. 7. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing the offence under Sec.304A IPC. Accordingly, they proceeded to pass the impugned concurrent impugned judgments. 8. Before me, the learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned concurrent verdict of guilty, conviction and sentence on the following grounds: (i) The courts below should not have accepted and acted upon the oral evidence of P.Ws.1 to 3 and 6. (ii) The courts below ought to have held that the accused is, at any rate, entitled to the benefit of doubt. (iii) The sentence imposed is excessive. 9. Grounds (i) & (ii): We have the evidence of P.Ws.1, 2, 3 Crl.R.P. No.618 of 2001 -: 5 :- and 6 about the incident. P.Ws.4 and 7 examined by the prosecution as independent witnesses to the occurrence had turned hostile completely. Hostility of P.Ws.4 and 7, according to me, cannot deliver to the accused any undeserved advantage or benefit. Criminal courts in India frequently do come across the circumstance of the allegedly independent eye witnesses turning hostile to the prosecution with impunity. Such hostility cannot be held to be of any crucial significance. 10. The evidence of P.Ws.1, 2, 3 and 6 clearly show that they were present at the scene of the occurrence and had suffered injuries in the incident. That version of P.Ws.1, 2, 3 and 6 is supported eminently by the contents of contemporaneous Ext.P1 First Information Statement as also the evidence tendered by P.Ws.9, 11 and 12 as also Exts.P3 to P5 and P8 certificates issued by them. In these circumstances, the oral evidence of P.Ws.1, 2, 3 and 6 cannot be wished away; nor can they be discarded simply for the reason that they are injured and hence interested in the prosecution. It is relevant to note that no prior motive or animosity is even suggested for P.Ws.1 to 3 and 6 to raise false allegations against the petitioner. 11. The evidence of P.Ws.1 to 3 and 6 show that the petitioner was driving the vehicle at the relevant point of time. Crl.R.P. No.618 of 2001 -: 6 :- Ext.P12 trip sheet affords assurance for the version of P.Ws.1 to 3 and 6. P.W.16, though turned hostile, did not advance any positive version that any other person was engaged by him as a driver of the vehicle. Hostility of P.W.16, though objectionable, is understandable as he was called upon to tender evidence against an employee of his. Such hostility does not assume any significance in this context. 12. I am, in these circumstances, satisfied that the evidence of identification of the petitioner as the driver of the vehicle by P.Ws.1 to 3 and 6 as supported by Ext.P12 was rightly accepted by the courts below and, in fact, before me, no strenuous attempt has been made to dispute the identity of the driver of the vehicle. 13. The learned counsel for the petitioner has trained all his guns against the concurrent finding that the accident occurred on account of the rashness and negligence on the part of the petitioner. On this aspect, we have the oral evidence of P.Ws.1 to 3. Their version is supported by the contents of Ext.P1 First Information Statement lodged by P.W.1 shortly after the accident. The prosecution endeavours to draw support and inspiration for their oral evidence from the tell tale indications available at the scene of the crime as revealed from Ext.P6 scene Crl.R.P. No.618 of 2001 -: 7 :- mahazar. Both the vehicles were available at the scene of the occurrence. In the instant case, the scene mahazar describing the scene of the crime and the inputs available at the scene of the occurrence go a long way to assume the court of the acceptability of the oral evidence of the eye witnesses. It is the case of P.Ws.1 to 3 and 6 that the autorikshaw was being driven from the west towards east along the correct side of the road i.e., the northern half/segment of the road. According to them, the vehicle driven by the petitioner had come in the opposite direction and had hit against the autorikshaw dragging the autorikshaw backwards. This appears to be the consistent version of P.Ws.1 to 3. 14. We now look at the scene mahazar Ext.P6. The road of the scene of the occurrence lies east to west. The tarred road has a width of 6.92 Mtrs. and the road margin on the north has a width of 7 Mtrs. that on the south has a width of 1 Mtr. The vehicle driven by the petitioner was proceeding from east towards west. Keep left is the basic rule of the road in India. It was incumbent on the petitioner to keep his correct side of the road i.e., the southern half of the road. In a road having 6.92 Mtrs. the imaginary mid-line must run at a distance of 3.46 Mtrs. from either kerb of the road. The scene of the occurrence is Crl.R.P. No.618 of 2001 -: 8 :- located with reference to the vehicles involved in the accident as also the marks available at the scene of the crime. The spot of the occurrence is at a distance of 2.47 Mtrts. to the south of the northern kerb. This evidently means that the spot of the accident located is at a distance of 1.02 Mtrs (3.46 minus 2.44 Mtrs.) to the north of the imaginary mid-line. That suggests that the vehicle driven by the petitioner had strayed to his wrong side i.e., the right hand side. From the spot of the accident 7 Mtrs. east towards, we find tyre marks of the bus on the road. This evidently gives an idea about the speed with which the vehicle was being driven by the petitioner. Even after application of sudden brakes, the vehicle did not stop for a distance of 7 Mtrs., it is evident from the indications in the scene mahazar. 15. Yet another indication available is that the bus was found present at a distance of 2.67 Mtrs. – (about 9 feet) to the west of the spot of impact. Witnesses have a definite case that the autorikshaw was dragged backwards after the impact. That version gets support from the location of the spot of impact and the position of the vehicles after the impact. 16. Thus, I find that the courts below were justified in drawing inspiration for the oral evidence of P.Ws.1 to 3 and 6 Crl.R.P. No.618 of 2001 -: 9 :- from the positive indications gathered by the Investigating Officer when he prepared the scene mahazar - Ext.P6. 17. The learned counsel for the petitioner contends that notwithstanding these indications, there are some other clues which can help this court to come to the conclusion that the accident did not take place on account of any rashness and negligence of the petitioner or at least that the petitioner is entitled for the benefit of doubt. The learned counsel first of all relies on the circumstance that five persons were travelling in the autorikshaw. Only four is permitted, at worst. According to him, the presence of five persons indicates that the autorikshaw driver and the passengers were negligent. That circumstance can only show that the relevant rule regarding the number of passengers that can be carried is breached; but that by itself cannot, according to me, indicate any rashness or negligence on the part of P.W.2 – the driver of the autorikshaw. 18. The learned counsel strenuously points out to me that the driver of the vehicle, even going by his evidence, had secured the driving licence only within a period of three months prior to the accident. I note the admission made by P.W.2 on this aspect. But that again is far from sufficient to conclude that there was any inexperience, inadequacy or negligence on the Crl.R.P. No.618 of 2001 -: 10 :- part of P.W.2. 19. The learned counsel then points out that that they – P.Ws.1 to 3 and 6 state that the autorikshaw was coming along the extreme left hand side of the road. The spot of impact is located 2.44 Mtrs. south of the northern kerb. This must, at least, suggest that their version that the autorikshaw was proceeding along the extreme left hand side (northern side of the road) is not correct. The oral evidence of the witnesses cannot be read as though they are accurate and final statement of facts. When P.Ws.1 to 3 and 6 stated that the vehicle was proceeding along the extreme left hand side of the road, the mere identification of the spot of impact at a distance of 2.44 Mtrs. south of the northern kerb cannot be held to be sufficient to demolish or suspect that version of P.Ws.1 to 3. That would be an artificial and myopic appreciation of the oral evidence of witnesses. 20. The learned counsel finally points out that after the impact when the vehicles stopped, the autorikshaw was seen facing northwards. From this, the learned counsel laboriously built up an argument that it must have been a case where the autorikshaw proceeded from the southern side of the road to northern side obliging the driver of the bus to swerve suddenly Crl.R.P. No.618 of 2001 -: 11 :- to the right hand side to avoid a head on collision. Strangely and surprisingly, in the cross-examination of eye witnesses or even when the accused gave his 313 statement, this possibility is not urged at all. The evidence shows that after the collision because of the impact the autorikshaw was dragged backwards. The mere fact that after the autorikshaw was dragged backwards for a distance of about 267 cms., the completely damaged autorikshaw (as seen from the Motor Vehicle Inspector's report) was facing northwards is no reason for a prudent mind to jump to the conclusion that the autorikshaw must have crossed over from south to north in rash and negligent manner and that must have been the cause of the accident. The learned counsel relies on the decision of the Supreme Court in Mahadeo Hari Lokre v. State of Maharashtra ((1972) 4) SCC 758) to contend that if a victim suddenly crosses the road without taking note of approaching vehicle, the driver may not be in a position to avoid the accident. There can be no dispute about that proposition of law. But there is no indication to even remotely assume and infer that the autorikshaw had safely crossed the road from the south to the north. 21. The learned counsel points out that the nature of the damage suffered by the bus only shows that the damage was on Crl.R.P. No.618 of 2001 -: 12 :- the front middle of the bus. The learned counsel relies on the absence of damage on the front side towards right to contend that the accident could not have taken place in the manner spoken to by P.Ws.1 to 3. Be that as it may, I am unable to accept the same because the evidence of P.Ws.1 to 3 does not rule out a head on collision between the autorikshaw and the bus or a contact between front middle side of the bus and the autorikshaw. 22. I am, in these circumstances, satisfied that notwithstanding the efforts made by the learned counsel for the petitioner, the challenge raised on merits cannot be accepted and has got to be turned down. 23. Finally, the learned counsel for the petitioner prays that leniency may be shown on the question of sentence. Elapse of a period of 1 ½ decades after the accident; enduring the trauma of the prosecution for this long period; the fact that the petitioner has no contumacious past etc., are pressed into service. The learned counsel urges that there was some sudden unexpected circumstance which obliged the petitioner to apply sudden brakes as indicated by the tyre marks. All these may cumulatively be taken into account, at least, to reduce the sentence imposed on the petitioner, contends the learned Crl.R.P. No.618 of 2001 -: 13 :- counsel for the petitioner. 24. I have considered all the relevant aspects. I am not persuaded to agree that a substantive sentence of imprisonment can or ought to be avoided in the facts and circumstances of this case; but taking note of all the relevant circumstances, I am persuaded to agree that the substantive sentence can be modified and reduced. Deterrence has certainly a role to play to ensure that our roads are safer for the users. But deterrence in a case like this does not necessarily depend on the length of the period that the offender spends behind the bar. Deterrence lies in sending such a person to prison for a reasonable period and not an unduly long period of incarceration. I am, in these circumstances, satisfied that the substantive sentence imposed for the offences under Secs.279, 337, 338 and 304A IPC can be reduced to simple imprisonment for a period of 2 months, 2 months, 3 months and 6 months respectively for the said offences. The revision petition succeeds to the above extent. 25. In the result: (a) This revision petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under all other counts are upheld. (c) But the sentence imposed is modified and reduced. In Crl.R.P. No.618 of 2001 -: 14 :- supersession of the sentence imposed on the petitioner by the courts below he is sentenced to undergo simple imprisonment for a period of 2 months, 2 months, 3 months and 6 months respectively for the offences under Secs.279, 304A, 337 and 338 IPC. The direction that the sentences shall run concurrently is also upheld. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No.618 of 2001 -: 15 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.618 of 2001 ------------------------------------------------- Dated this the 17th day of June, 2009 ORDER