IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Crl.Rev.Pet.No. 694 of 2001() ----------------------------- CRA.174/1998 of II ADDL. SESSIONS COURT, PALAKKAD CC.212/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- M.SUBRAMANI, S/O. MARIYAPPAN, KANKANUR, MADHUKKARAN, OMALLUR, SALEM DISTRICT. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S): --------------- STATE, REPRESENTED BY C.I. OF POLICE, ALATHUR (CRIME NO.285/93) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.C.M.KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 3334 of 2001 in Crl.R.P. No. 694 of 2001 Dismissed. 21-10-2009 Sd/- P.Q.Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 694 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 21st day of October, 2009 Revision petitioner is the accused in C.C.No.212 of 1995 of the Judicial Magistrate of the First Class, Alathur and the appellant in Crl.A.No.174 of 1998 of the Second Addl. Sessions Court, Palakkad. He was convicted for the offences punishable under sections 279, 337, 338 and 304A IPC by the trial court and sentenced to undergo rigorous imprisonment for one year each under sections 338 and 304A IPC and rigorous imprisonment for three months each under sections 279 and 337 IPC. Substantive sentences were ordered to run concurrently. His driving licence was suspended for a period of two years. On appeal by the accused, his conviction under sections 279, 337, 338 and 304A IPC was confirmed. Sentence imposed by the trial court under sections 304A and 279 IPC was also confirmed. Sentence imposed under sections 338 and 337 is reduced to rigorous imprisonment for six months and rigorous imprisonment for one month respectively. The accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in evidence before the trial court, was that on November 6, 1993 at about 4 AM. the accused drove a bus bearing registration No.KLA-01-7997 along the National Highway, Crl.R.P. 694/01 2 Thrissur in a rash and negligent manner, so as to endanger in human life and collided head on with a lorry bearing registration No.TAN - 7405 at Vanur - Keezhpadam in Alathur Taluk, as a result of which five passengers who were travelling in the bus died on the spot and ten persons CWs.2 to 12 and CW20 sustained grievous injuries and CWs.13 to 17 sustained simple injuries and therefore, the accused has committed the offences punishable under sections 279, 337, 338 and 304A IPC. 3. The accused on appearance before the trial court pleaded not guilty to charge under sections 279, 337, 338 and 304A IPC. A case was also registered against the driver of the lorry as C.C.No.213 of 1995, in which the accused has absconded. PWs.1 to 29 were examined and Exts.P1 to P28 were marked before the trial court. When questioned under section 313 Cr.P.C., the accused admitted the accident but submitted that there was no negligence on his part, that wooden planks projecting outside the lorry hit on the right side of the bus behind driver's seat, which caused the accident. No defence evidence was adduced. The trial court, on an appreciation of the evidence, found the revision petitioner guilty of the offences punishable under sections 279, 337, 338 and 304A IPC, convicted him thereunder and sentenced him as aforesaid. On appeal, the appellate court confirmed his conviction under sections 279, 337, 338 and 304A IPC Crl.R.P. 694/01 3 and sentence under sections 279 and 304A IPC, but modified sentence under sections 338 and 337 IPC to rigorous imprisonment for six months and rigorous imprisonment for one month respectively. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under sections under sections 279, 337, 338 and 304A IPC by the trial court, which is confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. Learned counsel for the revision petitioner arguing the revision submitted that the accident occurred due to the negligence on the part of the driver of the lorry, which is seen form the fact that the police has charged a case against him also. 6. PWs.1 to 11 and 18 sustained injuries in the accident. All these witnesses, except PW8, were the passengers in the bus. PW8 was the substitute driver and he did not support the prosecution. PWs.1 to 7 and 9 to 11 testified that the bus was coming at a high speed. PW12 is an attestor to scene mahazar Ext.P2. PW13 is the attestor of Exts.P3 and P4 inquest reports. PW17 is the attestor of Exts.P19 and P20 inquest reports. PWs.14, 15, 19, 20, 24, 25 and 28 are the doctors who treated the injured persons and Crl.R.P. 694/01 4 conducted postmortem. PW14 conducted the postmortem on the dead body of deceased Mary @ Pushpa, Paul and Thomas and issued postmortem certificates Exts.P5 to P7. PW24 conducted postmortem of deceased Asha and issued Ext.P24 postmortem certificate. PW25 conducted postmortem on the dead body of deceased Mariyamma and issued postmortem certificate Ext.P25. PW15 proved the wound certificates of Manikkan (PW8), Ashokan (PW4), Sudheer (PW18), Lonapan, Gracy (PW6), Greena (PW7), Saphia, Beena (PW5) and Vijayalakshmi as Exts.P8 to P16. PW19 proved wound certificate of Yasiq as Ext.P21. PW20 proved the wound certificate of Sreekumar Varma as Ext.P22. PW28 who examined Zaccariah, Sreedhar and Parthasarathi and issued Exts.P26 to P28 wound certificates. PW16 is the Joint R.T.O. who inspected the bus and lorry and issued inspection reports Exts.P17 and P18. He found that there was no mechanical defect. PW21, the then Assistant Sub Inspector registered the case. Ext.P1(a) is the F.I.R. PW22 is another Assistant Sub Inspector who conducted initial investigation and prepared scene mahazar Ext.P2 and seized the trip sheet of the bus Ext.P23. PW23 is the then Circle Inspector of Police who conducted the investigation and laid the charge before the trial court. PW26 is the Head Constable who conducted the inquest on the dead body of Thomas and prepared Ext.P4 inquest report. Crl.R.P. 694/01 5 7. It is pertinent to note that five persons died in the accident and 12 persons sustained injuries. Some of them sustained grievous injuries in the accident. The accident itself is not disputed. It is also not disputed that PWs.1 to 11 and 18 sustained injuries in the accident and that five persons died. The identity of the driver is also not disputed. 8. The main contention raised by the accused before the trial court, the lower appellate court and this Court is that the accident occurred due to the negligence of the driver of the lorry. PWs.1 to 4, 6, 7 and 9 to 11 have deposed that the bus was coming at a high speed. Since this being a head on collision between the two vehicles, the burden is heavy on the accused to prove that there was no negligence on his part. The specific case of the accused is that the wooden plank projecting outside the lorry hit to the right side of the bus. But PW2 who inspected the vehicle did not find any such wooden plank projecting outside the lorry. Further, the bus was on the wrong side. Therefore, I am of the view that the trial court as well as the lower appellate court was justified in believing the evidence adduced on the side of the prosecution and coming to the conclusion that the accident occurred due to the negligence on the part of the accused. Therefore, I confirm the conviction of the accused under sections 279, 337, 338 and 304A IPC rendered by the trial court which is confirmed in appeal. Crl.R.P. 694/01 6 9. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for one year each under sections 338 and 304A IPC and rigorous imprisonment for three months each under sections 279 and 337 IPC. On appeal the lower appellate court confirmed the conviction under sections 279, 337, 338 and 304A IPC. The appellate court also confirmed the sentence under sections 279 and 304A IPC and reduced the sentence imposed under sections 338 and 337 IPC to rigorous imprisonment for six months and rigorous imprisonment for one month respectively. Before this Court the counsel for the revision petitioner produced documents to show that the accused is a severe chronic asthma patient and is aged 54 years. Further police has also charged a case against the lorry driver. Taking into consideration all these aspects, I feel that the sentence imposed by the trial court under sections 279 and 337 IPC, which was confirmed by the lower appellate court can be upheld, sentence imposed by the trial court under section 304A IPC i.e., rigorous imprisonment for year, which was confirmed by the lower appellate court can be reduced to three months and sentence imposed by the trial court under sections 338 IPC i.e., rigorous imprisonment for one year, which was modified by the lower appellate court to six months can be reduced to three months. 10. In the result, conviction of the revision petitioner/accused under Crl.R.P. 694/01 7 sections 279, 337, 338 and 304A IPC is confirmed. Sentence imposed by the trial court i.e., three months under section 279 IPC, which was confirmed in appeal by the lower appellate court is upheld. Sentence imposed by the trial court i.e., rigorous imprisonment for three months under section 337 IPC, which was modified by the lower appellate court into rigorous for one month is confirmed. The sentence imposed under s by the trial court section 338 IPC ie., rigorous imprisonment for one year which was modified by the lower appellate court into rigorous imprisonment for six months is reduced to rigorous for three months. The sentence imposed by the trial court under section 304A IPC i.e., rigorous imprisonment for one year which was confirmed in appeal by the appellate court is reduced to rigorous for three months. The substantive sentences shall run concurrently. The direction of the trial court to suspend the driving licence of the revision petitioner is also confirmed. The revision petitioner shall surrender before the trial court on or before 30-11-2009. His bail bonds are canceled. P.Q. BARKATH ALI, JUDGE mn