IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No.330 of 2002() ----------------------------- SC.97/1997 of PRL. ASSISTANT SESSIONS COURT, THRISSUR CRA.99/1999 of III ADDL. SESSIONS COURT (FAST TRACK COURT) No.I, THRISSUR .................... REVN. PETITIONER/APPELLANT/FIRST ACCUSED --------------------------------------------------------- 1. AZEEZ, S/O.THAROOPEEDIKAYIL KUNHU MUHAMMED, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE. BY ADV. SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM SMT.NIMISHA JYOTISH RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. R. P. No.330 of 2002 ------------------------------------------------ Dated this the 23rd day of May, 2009 ORDER The accused in S.C.97/1997 on the file of the Assistant Sessions Judge, Thrissur who was charge sheeted by the Circle Inspector of Police Cherpu in Crime No.211/96 of Cherpu Police Station for offence under Sections 279, 337, 304 and 304(A) IPC is the petitioner in this revision as he was found guilty and convicted by the learned Magistrate for offence under Sections 304(A), 279 and 337 IPC finding A2 not guilty of the offence with which he stood charged. The conviction and sentence passed against the petitioner was upheld also in appeal by the Sessions Judge (Fast Track Court No.1), Thrissur. Hence, this revision. 2. The petitioner along with the second accused in the case was being charge sheeted Crl. R. P. No.330 of 2002 -2- for the offences aforesaid inter alia on the allegation that the petitioner/first accused drove a limited stop bus “Sree Kaliswari” bearing registration No.KL-8-D-7866 along the Irinjalakkuda-Thrissur public road towards north in a rash and negligent manner so as to endanger the personal safety of others on 28/11/96 and at about 5.10 p.m it collided against a limited stop bus of J.N. Travels bearing registration No.KL-8-B-7817 driven by A2 towards south along the said road in a rash and negligent manner so as to endanger personal safety of others and at the place Urakam for reason of rash and negligent driving of the buses by accused Nos.1 and 2 and as a result Mohanan and his child Gayathri who were travelling in “Sree Kaliswari” bus driven by the first accused, sustained fatal injuries and died as a result of the injuries Crl. R. P. No.330 of 2002 -3- sustained in the accident; that Mohanan died on the spot itself and his child Gayathri aged one and a half years succumbed to the injuries on the way to the hospital and several other passengers also sustained injuries in the accident. 3. After trial and considering the evidence in the case the learned Assistant Sessions Judge found the second accused not guilty of any of the offences with which he stood charged and acquitted him and acquitted the petitioner/first accused also of the offence udner Section 304 IPC, but found him guilty of the offences under Sections 279, 337 and 304(A) IPC and sentenced him to simple imprisonment for one year under Section 304(A) IPC; to simple imprisonment for three months under Section 279 IPC and to simple imprisonment for three months for offence Crl. R. P. No.330 of 2002 -4- under Section 337 IPC with benefit of concurrency. The appellate court also confirmed the said conviction and finding as against the petitioner/first accused and hence, this revision. 4. It is contended before me by the learned counsel for the revision petitioner that the only witnesses who supported the prosecution case are the wife and mother-in- law of Mohanan/the deceased in the case who tendered evidence as PWs.12 and 14; that all the other occurrence witnesses are hostile and that basing on the evidence of PWs.12 and 14 which according to the learned counsel cannot be accepted as truthful, a conviction of the petitioner should not have been entered into. 5. It is also contended by her that the bus driven by the first accused was being hit by the bus driven by the second accused at its Crl. R. P. No.330 of 2002 -5- rear portion which would suggest that the negligence was on the part of the second accused in driving the bus and that the petitioner was wrongly being found guilty by the courts below. She has taken me through the entire evidence in the case and more particularly the testimonies of PWs.1 to 8, 12, 14, 18 and 21 who alone are examined as occurrence witnesses in the case. 6. It is true that as contended by the counsel, the testimonies of PWs.1, 4, 5, 6, 18 and 21 are not at all helpful to support the prosecution case, but all the same, the evidence tendered by the other occurrence witnesses namely PWs.2, 3, 7, 8, 12 and 14 throws light as to the manner in which the accident has taken place. PW2 has stated that the bus Sree Kaliswari wherein she was a passenger was proceeding at a high speed and Crl. R. P. No.330 of 2002 -6- she got scared and that the accident occurred when the said bus had almost completed overtaking another bus which was proceeding in its front, by the bus driven by the second accused coming in the opposite direction colliding against it. According to her, the fact that she got scared was stated to the police as well at the time of investigation though she is not aware as to whether the police has recorded the same. The said omission is proved also in examination of PW.22/the investigating officer. 7. PW3 has stated that he was a passenger in the bus which was proceeding towards north which collided against the bus coming in the opposite direction and that the said bus wherein he was travelling was proceeding at a speed in excess of the normal speed of buses. He has denied the suggestion in cross Crl. R. P. No.330 of 2002 -7- examination that he is giving false evidence that the bus was proceeding at a speed in excess of the usual and normal speed. 8. PW7 is another passenger who was travelling in Sree Kaliswari bus driven by the petitioner. He also stated that the bus was being driven at an excessive speed and that despite demand by the passengers the driver did not care to reduce the speed. The witness is not even cross examined by the defence. 9. PW8 was another passenger in the bus driven by the petitioner and he also has stated that the bus was being driven at an exorbitant speed. In cross examination he has stated that the fact that the bus was being driven at an exorbitant speed was stated also to the police though he is unable to say whether the police did record it. There is no question put to the Investigating Officer as Crl. R. P. No.330 of 2002 -8- to whether PW8 had not told him that the bus was being driven at an excessive speed by the petitioner and hence, the testimony of PW.8 on that score cannot be ignored. 10. PW12 has identified A1 as the driver of the bus bearing Registration No.KL 8-D-7866 namely the “Sree Kaliswari” bus wherein she was also a passenger. According to her, the bus was being driven by A1 at a very high speed overtaking several other vehicles; that thereupon the passengers raised voice cautioning that if the bus is driven on such a high speed accident may occur; that she also felt uneasy by reason of the excessive speed of the bus and that the bus that was coming in the opposite direction was colliding against “Sree Kaliswari” bus immediately on that bus driven by A1 has hardly overtaken another bus which was proceeding in its front. According Crl. R. P. No.330 of 2002 -9- to her, the excessive speed and the rashness and negligence of the driver of “Sree Kaliswari” bus namely the petitioner, has caused the accident. In cross examination she has asserted that she knows A1 even earlier and had prior acquaintance with him as driver; that she felt like getting down from the bus on account of its excessive speed though she did not do so; that “Sree Kaliswari” bus did overtake all the vehicles that were proceeding in its front and she had disclosed all those matters to the police though she is unable to say anything if the police have not recorded those statements. She has further asserted that the name of the driver who drove the bus was Azeez; that it is the first accused/petitioner and that she knows his name even earlier to the occurrence involved in this case. It is true that a few of her Crl. R. P. No.330 of 2002 -10- statements was put to PW22 as omissions and was proved. But PW22 has stated that PW12 had told him that the bus was overtaken several other vehicles at a high speed. PW22 has also proved Exts.P2, P3, P4, P21, P22 and P27 C.D. contradictions. 11. PW14 also has deposed that “Sree Kaliswari” bus involved in the accident was being driven at a very high speed and that the bus was being driven by the first accused and that the excessive speed of the bus was the reason for the accident taking place. In cross examination she has further stated that she can identify the driver on sight though however, she has nothing to say if the police has not recorded that statement given by her. She has also asserted that she had stated to the police that the bus was being driven at a very high speed though however, she has got Crl. R. P. No.330 of 2002 -11- nothing to say if the police has not recorded that. Though such questions were asked to PW14 so as to bring in statements by way of omissions those were not put to the Investigating Officer and hence, the alleged statements are not contradictions by way of omissions. 12. The above evidence discussed by me is sufficient to establish the rashness and negligence of the petitioner in driving “Sree Kaliswari” bus bearing Registration No.KL-8D- 7866. 13. An attempt was made by the counsel for the petitioner to contend that the offending vehicle was vehicle bearing Registration No.KL-8-B-7817 driven by A2 contending that the said bus was hitting against the rear most portion of the bus “Sree Kaliswari” driven by A1 and that, that would Crl. R. P. No.330 of 2002 -12- amply establish that the negligence was not on the part of the petitioner, but on the part of A2 who was driving the other bus involved in the collission. 14. I have gone through the vehicle inspection report as also the scene mahazar. Both show that both the vehicles were having damage involved in the accident beginning from the right side of the grill of both the vehicles and causing breakage of the right side quarter glass and the damage runs from the front right portion up to the rear most portion of both the vehicles. Hence, the contention that there was no head on collission and there was no negligence on the part of the petitioner is not of any merit. 15. Finally a feeble attempt was made by the learned counsel to contend that the accused was not the driver of the bus “Sree Crl. R. P. No.330 of 2002 -13- Kaliswari”. That contention also is not of any merit as not even a suggestion is made to PW12 who is the wife of deceased Mohanan and mother of deceased Gayathri who also was a passenger in the bus suggesting that the petitioner was not the driver of the bus “Sree Kaliswari”, though however, it is seen from cross examination of PW14 that such a suggestion is made in the cross examination, but that is denied by the witness and it is asserted by her that it was A1 himself who was driving “Sree Kaliswari” bus wherein she also was a passenger. Over and above all that when questioned under Section 313 Cr.P.C also he has no case that he was not the driver of “Sree Kaliswari” bus bearing Registration No.KL-8D-7866 involved in the accident. His answers when incriminating portion of evidence were put to him in examination under Section Crl. R. P. No.330 of 2002 -14- 313 Cr.P.C were all to the effect that those are all not correct. Even to the question as to whether he has got anything else to say in relation to the case his answer was only that he is innocent and had no case that he was not the driver of the bus at the time of the accident taking place. 16. In the nature of the evidence discussed by me above, I am unable to find any incorrectness, illegality or impropriety in the concurrent findings of the courts below to the effect that the petitioner is guilty of offence punishable under Sections 279, 337 and 304(A) IPC. There is hence, no merit in this revision assailing the conviction of the petitioner for those offences. 17. It is finally contended by the learned counsel for the petitioner that the sentence awarded is excessive. The sentence Crl. R. P. No.330 of 2002 -15- awarded to the petitioner for offences under Sections 304(A), 279 and 337 IPC are respectively simple imprisonment for one year; three months and three months and that too with benefit of concurrency. Any further reduction in the term of imprisonment for the driver of a stage carriage bus who is a driver by profession will not satisfy the punitive intent and would render the sentence a free bite sentence. Hence, no reduction in the term of imprisonment also can be granted. 18. In the result, I dismiss this Crl. R.P. K.P.BALACHANDRAN, JUDGE kns/-