IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 Crl.Rev.Pet.No. 3342 of 2006() ------------------------------ CRA.136/2005 of ADDL.SESSIONS COURT, THODUPUZHA CC.169/2003 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER/ACCUSED/APPELLANT: ---------------------------- BABY, S/O.MATHAI, MAKKIYIL VEETTIL, THIRUMARADI KARA, THIRUMARADI VILLAGE. BY ADV. MR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENT/STATE/ACCUSED/COMPLAINANT: -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.P.P.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPLN.9518/2006 IN CRL.R.P.3342/2006 DISMISSED. 19.3.2009 S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.3342 OF 2006 (C) ----------------------------------- Dated this the 19th day of March, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offences punishable under Sections 279, 337, 338 and 304 (A) of the Indian Penal Code. He was prosecuted for the offences punishable under Sections 279, 337, 338 and 304 (A) of IPC and Section 134 (a) and (b) read with Section 187 of the Motor Vehicles Act, on a charge laid by the S.I. of police, Thodupuzha. He pleaded not guilty to the offences. The learned Magistrate, after trial, found him guilty of the offences punishable under Sections 279, 337, 338 and 304 (A) of IPC, and convicted him thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.500/- with default term of simple imprisonment for 15 days under Section 279 IPC, simple imprisonment for six months and fine of Rs.500/- with default term of simple imprisonment for 15 days under Section 338 of the IPC and simple imprisonment for one year and fine of CRL.R.P.3342/06 2 Rs.1,000/- with default term of simple imprisonment for one month under Section 304 (A) of IPC, directing him to undergo the substantive terms of imprisonment imposed concurrently. He was found not guilty of the offences punishable under Section 134 (a) and (b) read with Section 187 of the M.V. Act and acquitted of those offences. In appeal, the Sessions Judge confirmed the conviction but modified the sentence, ordering him to pay a fine of Rs.1,000/- with default term of simple imprisonment for one month for the offence under Section 279 of IPC, simple imprisonment for two months for the offence under Section 338 of IPC and simple imprisonment for six months and fine of Rs.1,000/- with default term of simple imprisonment for one month for the offence under Section 304 (A) of the IPC. Aggrieved by the conviction and sentence, as indicated above, questioning its legality, propriety and correctness, he has preferred this revision. 2. The prosecution case is that accused drove a stage carriage bus, namely, “Thusharam” bearing registration No.KL.7G/3825, rashly and negligently, at enormous speed, through Idukki – Thodupuzha public road, endangering human life, on the morning of 16.4.2002, and, when the vehicle reached Moolamattom canal, on account of his rash and CRL.R.P.3342/06 3 negligent driving and his reckless overtaking of another bus moving in front, the left rear side of the bus hit on a motor cycle bearing registration No.KL.7AB/9366 ridden by PW2 with his wife, who then was carrying by four months, in the pillion seat. The bike, on being hit, got entangled to the left rear back door of the bus, eventually, throwing the riders of the bike to the road causing them severe injuries, to which the pillion rider, the wife of PW2, succumbed at the spot. Over the occurrence, a crime was registered, which after investigation, led to the indictment of the accused for the offences punishable under Sections 279, 337, 338, 304 (A) of IPC and under Section 134 (a) and (b) read with Section 187 of the M.V.Act. The accused, on appearance, pleaded not guilty when the particulars of the offences were made known. Prosecution thereupon examined PWs.1 to 15 and got marked Exts.P1 to P11 to prove its case. The accused maintaining his innocence disputed his identity as the driver of the bus involved when questioned under Section 313 of the Cr.P.C. Other than exhibiting a portion of the 161 statement of one of the prosecution witnesses, which was contradicted in his evidence, no other material was placed by the accused. The learned Magistrate, after appreciating the materials found the accused guilty of the offences punishable under Sections 279, CRL.R.P.3342/06 4 337, 338 and 304 (A) of IPC and convicted him thereunder. He was acquitted of the charges under Section 134 (a) and (b) read with Section 187 of the M.V.Act. Conviction of the accused for the offences as already stated were confirmed by the learned Sessions Judge in appeal with slight modification of the sentence imposed by the learned Magistrate. Hence this revision. 3. The defence canvassed by the accused that he was not the driver of the offending vehicle involved in the occurrence is pressed into service by his learned counsel contending that the prosecution had miserably failed to establish his identity as the driver of the bus. Other than the evidence of PWs.2 and 3, the latter stated to be a relative of PW2, it is submitted, there was nothing to establish conclusively that at the time of occurrence the vehicle was driven by the accused. Evidence of PWs.2 and 3 was attacked as highly interested and unworthy of credence. In the alternative, on the merits of the case, it is submitted, the accident, as could be seen from the evidence of PWs.2 and 3, occurred when a K.S.R.T.C bus came from the opposite direction compelling the driver of the offending vehicle to swerve that vehicle to left side to avoid a collision. So, at the CRL.R.P.3342/06 5 most, it was only an error of judgment which resulted in the body of the vehicle hitting against the bike, for which no culpable negligence of recklessness could be attributed against the driver, is the submission of the counsel. To prove rash and negligence of the driver, as imputed, the prosecution has not let in any worthmentioning evidence and there is no material in the case to draw such a conclusion, contends the counsel. Conviction of the accused in such circumstances is unsustainable is the submission of the counsel, who urged for setting it aside. 4. Before proceeding to examine the merit of the challenges raised by the learned counsel for the accused to assail the concurrent finding of guilty based on the various incriminating circumstances proved against the accused, by the two courts below, it has to be noted that in revisional jurisdiction a reappreciation of the evidence to examine the correctness of such finding is permissible only where it is shown that the finding is perverse and could not have been formed on the materials produced in the case. The object of revisional jurisdiction is paternal or supervisory intended to correct miscarriage of justice arising from irregularity of procedure, impropriety in the receiving of inadmissible CRL.R.P.3342/06 6 evidence or rejection of admissible evidence etc., which has resulted in grave injury or hardship to the parties in the proceedings. In revisional jurisdiction, the court will interfere in exceptional cases where it is satisfied that substantial injustice has been done. If a particular finding is shown as proved without any evidence, or misconstruing the evidence on record totally, the court may be justified in interfering with the findings arrived by the inferior courts. But on the materials, if the view taken by the inferior courts is possible even if the revisional court has reason to hold that a different view can also be formed, it should not supplement its view altering the view taken by the inferior courts. In otherwards, the mere possibility of another view on a particular point, the revisional court shall not interfere with the finding of the inferior courts. 5. Mainly, two challenges are canvassed by the accused to assail his conviction, the first, dispute of his identity as the driver of the offending vehicle, and, the second, occurrence involving the death of a young lady, pillion rider in the bike ridden by her husband, PW2, was an inevitable accident and not caused by the rash and negligent driving of the offending bus by its driver. Both the courts below relying on the CRL.R.P.3342/06 7 evidence of PWs.2 and 3 found that the offending vehicle was driven at the time of occurrence by none other than the accused. PW2, the rider of the bike, had asserted before the court that soon after the occurrence, while the riders of the bike were lying injured on the road, the driver of the offending bus, after stopping the vehicle some distance away, stepped down from the vehicle, and came to the spot. He identified the accused as the driver of the bus. He would also state that the accused after seeing the injured, the witness lying with one of his legs entangled in the damaged motor bike, and his wife, the victim, lying beside him with her eyes wide open, walked away. Nothing had been brought out in the cross examination of PW2 to doubt his identification of the accused as the driver of the bus. There is a ring of truth in the identification of the driver by PW2. The driver, he stated, coolly looked upon the victims and walked away without rushing to assist them. PW2, the husband of the victim and also the injured in the occurrence, might have had a vivid imprint of the driver in his mind, and identified the accused as the driver of the offending vehicle without expressing any remorse or ill-will towards him, which adds credence to his sworn testimony. PW3, a passenger in the bus, also identified the accused as the driver of the bus. The evidence of PWs.2 CRL.R.P.3342/06 8 and 3, on the identification of the accused as the driver of the offending vehicle, which was found reliable and trustworthy to the two courts below, in the proved facts of the case, is found to be unassailable, and there is no merit in the challenge canvassed by the accused that the prosecution had failed to lead sufficient legal evidence to prove his identity. The next challenge canvassed by the accused that the occurrence arose not on account of the culpable criminal negligence of the driver of the offending vehicle but, at the most, only due to an error of judgment, in the proved facts of the case, as borne out by the materials tendered by the prosecution, deserves to be taken into account only for its rejection. PWs.2 and 3 have given evidence that the accused, the driver of the 'Thusharam' bus, drove his vehicle in competition with another vehicle moving in the same direction, probably to run in front and collect passengers in advance from the bus stops. Twice the bike ridden by PW2 was overtaken by 'Thusharam' bus driven by the accused; and, when the bus was stationed in bus stops, after overtaking, the bike again moved in front, on these two occasions. PW2 would state that while he was moving in front, after passing the bus, which was, then, stationed in a bus stop, and when he reached near the spot of occurrence, the bus driven by the accused, after overtaking another bus moving in CRL.R.P.3342/06 9 front at enormous speed, came beside his bike. The driver of the bus noticing a K.S.R.T.C. bus coming from the opposite direction, recklessly swerved the vehicle to left side, which caused the bike and bus getting entangled, at a spot beside the left rear door of the bus, leading to the occurrence resulting in the death of the pillion rider and serious injuries to the rider, PW2. The evidence of PW2 as to how the occurrence took place is corroborated in material particulars by PW3, a passenger in the bus. The features evidenced by Ext.P2 scene mahazar lend assurance in holding that culpable criminal negligence of the driver of the offending bus, the accused, in driving the vehicle at enormous speed and reckless overtaking of another bus in enormous speed, endangering public life, was the cause for the occurrence resulting in the death of the victim, a lady, carrying by four months, and serious injuries to her husband, PW2. Conviction of the accused for the various offences under the Indian Penal code founded by the two courts below, in the proved facts of the case, deserves only to be confirmed, and I do so. 6. Having regard to the proved facts and circumstances established in the case, I do not find any justifiable reason to interfere with the sentence imposed for the various offences CRL.R.P.3342/06 10 with which the accused were found guilty and convicted. Sufficient indulgence had been shown by the learned Sessions Judge in reducing the sentence imposed by the trial Magistrate for the offence punishable under Section 304 (A) of IPC. In fact, modification of the sentence, in the given facts, without stating adequate reasons thereof, was not correct. Whatever that be, I find that no further modification of the sentence is called for in the case. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009