IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 565 of 2000() ----------------------------- CRA.206/1998 of SESSIONS COURT, THRISSUR CC.327/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- SURENDRAN S/O.KITTUNNY, 'VETTATH HOUSE', PORKULAM, KUNNAMKULAM. BY ADV. SRI.RAJIT RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.565 of 2000 -------------------------------------- Dated this the 16th day of October, 2008. ORDER Revision petitioner, on the charge of driving the offending vehicle rashly and negligently so as to endanger human life causing the bus to hit a culvert and capsizing resulting in the death of one passenger and hurt/grievous hurt to other passengers faced trial for offences punishable under Section 279, 337, 338 and 304 A of the Indian Penal Code (for short, 'the Code'). He was found guilty, convicted ad sentenced to undergo imprisonment for various periods. He preferred an appeal to the Sessions Court, but in vain. Hence, this revision. 2. Heard both sides. 3. Counsel for revision petitioner contended that there is no sufficient evidence regarding identify of the driver of the offending bus and that evidence is lacking to hold that there was culpable rashness or negligence on the part of the driver of the bus. That, all the passengers of the bus suffered hurt/grievous hurt and one of them succumbed to the injuries is not in dispute and proved by Exts.P4 to P8, P10 and P11 and the evidence of PWs 15, 16 and 19. PW17 inspected the offending bus and issued Ext.P9. His evidence is to the effect that accident was not due to any mechanical defect of the vehicle. Crl.R.P.No.565/2000 2 4. PWs 1 to 11, 13 and 14 were examined by the prosecution to prove the accident and identity of the driver. All the witnesses stated that they were travelling in the offending bus and that at the place of accident, it hit the culvert and capsized. They also stated that the bus was coming at excessive speed. PW1, in chief-examination identified the revision petitioner as the driver of the bus at the relevant time but in cross-examination he stated that at present (at the time of giving evidence) he does not remember who was the driver of the bus. It is based on that version of PW1 that learned counsel argued that there is no reliable evidence regarding the identity of the driver. Learned counsel submitted that evidence given in cross-examination being to the effect that PW1 was not able to identify the driver, his statement in chief-examination alone could not have been taken into account in the absence of any other evidence. 5. It is true that contradictory statements are given by PW1 regarding the identity of the driver of the bus. But, it is not as if the court was powerless to ascertain whether the statement made by PW1 regarding the identify of the driver was true. Positively he identified revision petitioner as the driver of the bus. The same stand he took while giving first information (Ext.P1) to the police immediately after the accident. That means, PW1 was able to and had identified revision petitioner as the driver of the bus. Ext.P9, report prepared by PW17 states in column No.17 that revision petitioner was the driver. It is true that Exts.P1 and P9 by itself are not sufficient to prove the identity of the driver. Ext.P1 is a statement given by PW1 in accordance with the provisions of law and lent support to his statement. There is further corroboration from Ext.P9 Crl.R.P.No.565/2000 3 also. It is in these circumstances that the learned magistrate was not impressed by the changed version of PW1 in cross-examination regarding identity of the driver. These aspects were considered by the appellate court also. I do not find anything illegal or irregular in the view taken by the learned magistrate. 6. So far as the allegation of rash and negligent driving is concerned, counsel submitted that merely that the vehicle was driven at excessive speed or that it hit the culvert are not by itself sufficient to warrant conclusion that there was rash or negligent driving. 7. There cannot be any single litmus test to decide whether there was rashness or negligence. That must depend upon the cumulative effect of various factors. In this case evidence given by the passengers of the bus is to the effect that the bus was driven at excessive speed and it was in the attempt to overtake another bus going in the same direction that it hit the culvert. Offending vehicle was going from east to west. Ext.P2, mahazar for scene of occurrence shows that culvert on the northern side was seen recently damaged. Thus, evidence of prosecution witnesses that the bus hit the culvert on the northern side gets corroboration from Ext.P2. Ext.P2 shows that the tarred portion of the road has width of 6.10 metres. There is also road margin on either side. Therefore, it is not as if, there was no sufficient width for the road even to overtake. Ext.P2 states that there was scratch mark along the road at a length of 49.65 metres from the place of occurrence to the culvert. It further states that several of the seats in the bus were dislocated. Exts.P2 and P9 Crl.R.P.No.565/2000 4 state about extensive damage suffered on the front, right side of the bus. These circumstances are eloquent indication of the excessive speed of the vehicle. Revision petitioner, without reducing the speed attempted to overtake another bus and caused the bus hit the culvert. These circumstances are sufficient to indicate culpable rashness and negligence on the part of the revision petitioner. Therefore, the finding of guilt entered by the courts below required no interference. Learned counsel at this stage made a request to interfere with the sentence awarded. Sentence awarded under Section 304 A of the Code is only simple imprisonment for six months. Imprisonment was not awarded for offences punishable under Section 279, 337 and 338 of the Code. While considering the request for leniency in the matter of sentence, I must also bear in mind that on account of the rash and negligent driving of the bus, a precious life is lost and several persons suffered hurt/grievous hurt. There is no reason to show any further leniency in the matter of sentence. Revision Petition fails. It is dismissed. Bail bond is cancelled. Crl.M.P.No.3129 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.565/2000 5 Thomas P.Joseph, J. Crl.R.P.No.565 of 2000 ORDER 16th October, 2008