IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Crl.Rev.Pet.No. 24 of 2003() ---------------------------- Crl.Appeal No.90/2002 of Additional Sessions Judge, Alappuzha C.C.No.733/1997 of JFCM-II, Cherthala REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAMESH S/O. VELU, SASTHAM VELIYIL VEEDU, WARD NO.1, CHERTHALA SOUTH PANCHAYATH, CHERTHALA. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KUTHIATHODE, THROUGH THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````````````` Crl. R.P. No. 24 of 2003 ``````````````````````````````````````````````````````` Dated this the 20th day of July, 2010 O R D E R The petitioner, driver of a private bus, was convicted and sentenced for the offence under Sections 304(A), 279, 337 and 338 of Indian Penal Code. Though petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.Appeal No.90/2002, the learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. The revision petitioner would contend that courts below did not properly appreciate the evidence and on evidence it should have found that the incident was not due to any rash and negligent driving of the petitioner but due to the negligence of the driver of the jeep and, therefore, the conviction is not sustainable. 3. The learned counsel appearing for the petitioner and learned Public Prosecutor were heard. The argument of the learned counsel is that the scene mahazar and the evidence establish that before the spot where the bus collided with the jeep, Crl.R.P.No.24/2003 : 2 : there was a gutter up to the western end of the tar road from the middle of the road and in such circumstances, the driver of the bus had necessarily to take the bus to the eastern side to avoid the gutter and at that time, the jeep from the opposite direction came in over speed and hit on the bus and, therefore, the incident was not due to any negligence on the part of the petitioner. The learned counsel argued that no investigation was conducted as to whether the driver of the jeep was liable and in such circumstances, petitioner is entitled to the benefit of doubt. The learned counsel finally submitted that the incident occurred in 1996 and at this distant point of time, petitioner may not be sent to prison and the sentence be converted to fine and in any case the substantive sentence be reduced. 4. The learned Public Prosecutor pointed out that both the trial court and the appellate court appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction or the sentence. 5. The fact that on 08-10-1996 at about 11.35 A.M. bus bearing No.KED-212 which was proceeding from Alappuzha to Crl.R.P.No.24/2003 : 3 : Ernakulam along the national highway, in front of St.Mary's Church at Chandiroor, hit on jeep bearing No.KEE-5112 which was coming from the opposite direction and caused the death of Unnikrishnan, Valsalan, Sunny and James, the driver and passengers of the jeep is not disputed. So also, the fact that PWs 2 to 5, who were passengers of the jeep, and PW11, who was the passenger of the bus, sustained hurt or grievous hurt as found by the courts below is also not disputed. Though identity of the petitioner as the driver of the bus was challenged before the learned Magistrate, the learned Magistrate based on the evidence of PWs 2 to 5 and PW11 who identified the petitioner as the driver and Ext.P19(a) statement disclosing that petitioner was driver of the K.S.R.T.C. bus at the relevant time found that the petitioner was driving the bus. In the light of the evidence, though learned counsel appearing for the petitioner disputed the identity, I find no reason to interfere with the finding. 6. Ext.P2 scene mahazar shows that the road is lying North-South. The width of the tarred road is 7 metres and the western road margin is having a width of two metres. The bus Crl.R.P.No.24/2003 : 4 : was admittedly proceeding from South to North. The jeep was proceeding from North to South. The proper side of the bus is West while that of the jeep is East. The bus collided with the jeep two metres to the west of the eastern tarred end establishing the bus proceeded further to the East of the road from the middle and hit on the jeep just two metres to the West of the Eastern tarred end. It cannot be disputed that the bus had proceeded along the wrong side and hit on the jeep which was proceeding from North to south along its proper side. The argument of the learned counsel is that Ext.P2 scene mahazar shows that a portion of the road from the Western tarred end to the middle of the road was damaged and consequently, a gutter was formed and the bus to avoid that gutter had to be taken along the Eastern side of the road and at that point, the jeep came and hit on the bus. The learned Magistrate and the learned Sessions Judge, on the evidence, found that even the hostile witnesses deposed that the bus just before it hit on the jeep had fell on the gutter and then the driver of the bus took the bus to the Eastern side of the road and hit on the jeep. As rightly pointed out by the courts below, when Crl.R.P.No.24/2003 : 5 : the bus was proceeding from South to North and there is a gutter, the driver should have either slowed down and negotiate the gutter or even if he had an intention to overtake the gutter going along the wrong side of the road, he should have stopped the bus and looked whether any vehicle is coming from the opposite side through its proper side and then only should have taken the bus to the eastern side. If that was done, the incident would have been avoided. The very fact that four passengers of the jeep including the driver died and several sustained grievous hurt and hurt establishes that the bus hit on the jeep at over speed which could not have the case if the petitioner was negotiating the gutter with reasonable care expected by the driver. In the light of the evidence, I find absolutely no reason to interfere with the findings of the learned Magistrate and the learned Sessions Judge that the petitioner was driving the bus rashly and negligently so as to endanger human life and by such driving caused hurt and grievous hurt and also death of the driver and three passengers of the jeep. In such circumstances, conviction of the petitioner for the offences under Sections 304(A), 279, 337 and 338 of Indian Penal Code is Crl.R.P.No.24/2003 : 6 : perfectly legal warranting no interference. 7. The learned counsel then argued that the fact that the petitioner was facing the trial from 1996 onwards is to be taken into consideration and the sentence is to be modified. It was submitted that petitioner is a driver in K.S.R.T.C. and he has only four more years to retire and in such circumstances, in the interest of justice, the substantive sentence may be avoided. The learned counsel finally argued that in any case the substantive sentence may be reduced. Though the learned counsel appearing for the petitioner vehemently argued for granting the benefit of benevolent provisions of the Probation of Offenders Act, on the facts, I find he does not deserve it. By the rash and negligent driving, petitioner caused death of four persons and hurt and grievous hurt to several passengers. The fact that petitioner can successfully protract the proceedings by filing the appeal and revision is not a valid ground to show leniency. The learned Sessions Judge had shown leniency and reduced the substantive sentence for the offence under Section 304(A) to simple imprisonment for six months in addition to a fine of Rs.5,000/-. Crl.R.P.No.24/2003 : 7 : Though simple imprisonment for three months for the offence under Section 338, simple imprisonment for two months for the offence under Section 337 and simple imprisonment for two months for the offence under Section 279 were also awarded, all these sentences were directed to be run concurrently. Therefore, the only sentence to be undergone by the petitioner is simple imprisonment for six months. In such circumstances, I find no reason to interfere with the sentence also. The revision is dismissed. (M.SASIDHARAN NAMBIAR, JUDGE) aks Crl.R.P.No.24/2003 : 8 : M.SASIDHARAN NAMBIAR, J. ````````````````````````````````````````````````` Crl. R.P. No. 24 of 2003 ````````````````````````````````````````````````` O R D E R 20th day of July, 2010