IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 2709 of 2009() ------------------------------ CRA.636/2003 of SESSIONS COURT, THALASSERY C.C.NO.573/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SHAJI, S/O.KUTTAPPAN, 37 YEARS, DRIVER, RESIDING AT CHALIPARAMBU, MOORIYAD, KUTHUPARAMBA. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. PUBLIC PROSECUTOR SHEI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2709 of 2009 -------------------------------------- Dated this the 25th day of August, 2009. ORDER Heard counsel for petitioner and Public Prosecutor who took notice for respondent. 2. This revision is in challenge of judgment of learned Sessions Judge, Thalassery in Crl.Appeal No.636 of 2003 confirming conviction and sentence of petitioner for offences punishable under Sections 279 and 304 A of the Indian Penal Code (for short, “the Code”) arising from C.C.No.573 of 1999 of the court of learned Judicial First Class Magistrate, Koothuparamba. Case is that on 14.5.1999 at about 8.20 p.m. petitioner drove the offending bus along Koothuparamba - Mattannoor road in a rash or negligent manner so as to endanger human life and caused that bus hit the deceased who was standing on the eastern side of the road. Prosecution examined PWs 1 to 11 and proved Exts.P1 to P8. Learned magistrate found that petitioner was rash or negligent in driving the bus, caused the accident and convicted him for offences above stated. He was sentenced to undergo imprisonment for various period. Appellate court confirmed conviction and sentence. It is contended by learned counsel that conviction of petitioner is not legal or proper. 3. PWs 1 and 3 are witnesses to the accident. PW3 is the brother of deceased. As per his version, they had come near the place of occurrence riding Crl.R.P.No.2709/2009 2 a scooter , it skidded, deceased fell down and there was dirt on his cloth. He wanted to wash the cloth and proceeded to the toddy shop situated on the eastern side of the road. While he was washing his hands standing on the eastern side of the road, the offending bus came in a rash and negligent manner at excessive speed and hit the deceased. PW1, owner of toddy shop has given evidence that deceased had been to his toddy shop seeking water and he asked him to take water from the courtyard. While deceased was washing his hands the bus came from wrong side and hit him. In cross examination PW1 was not able to say the speed of the bus in kilometer per hour. 4. That the deceased sustained injuries and succumbed to it on the day of accident is proved by PW8 and Ext.P6. PW9, motor vehicle inspector inspected the vehicle and issued Ext.P7. It is revealed that the accident was not due to any mechanical defect of vehicle. 5. Ext.P3 is the mahazar for scene of accident. Lie of the road is given as north-south. Tar portion has width of seven metres with road margin on either side. It is stated in Ext.P3 that there were tyre marks on the eastern side of the road to a length of eight metres towards south from the place of occurrence and towards north, upto five metres. It is also stated in Ext.P3 that the offending vehicle was coming from south to north. Evidence of PWs 1 and 3 shows that the bus was coming along wrong side. Going by Ext.P3 and evidence of PWs 1 and 3 the bus was coming from south to north at the place of accident. If that be so, proper side of the bus was western side while ExtP3 and Crl.R.P.No.2709/2009 3 evidence of PWs 1 and 3 show that the accident occurred on eastern side. In other words the accident occurred on the extreme wrong side of the bus. PWs 1 and 3 identified petitioner as the driver of the offending bus. Ext.P4, trip sheet of the bus also supported that. Petitioner has no explanation as to the circumstances in which the offending vehicle went to its extreme wrong side. Moreover, presence of tyre mark at the place of occurrence as shown in Ext.P3 would show that vehicle was coming at excessive speed. Ext.P3 shows that though petitioner attempted to stop the vehicle at a distance of eight metres south of the spot of accident he succeeded in stopping the vehicle only at a distance of thirteen metres. That gives an indication of the excessive speed in which the vehicle was coming. Coupled with that, there is evidence that accident occurred on the wrong side of the bus. These circumstances are sufficient to indicate rashness and negligence on the part of the petitioner. Hence conviction of petitioner under Sections 279 and 304A of the Code required no interference. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year under Section 304A and simple imprisonment for three months under Section 279 of the Code. Learned counsel requested that leniency may be shown to the petitioner. Along with the petition to condone delay revision petitioner has produced a medical certificate issued from Baby Memorial Hospital, Calicut to show that petitioner is undergoing treatment for coronary artery disease, etc . At the same time I must bear-in-mind that on account of rash or negligent driving of the petitioner deceased lost his life. Crl.R.P.No.2709/2009 4 Spiralling of motor accidents cannot be seen lightly. Taking these aspects into account I am satisfied that simple imprisonment for six months is sufficient under Section 304A of the Code. Resultantly, this revision petition is allowed in part to the extent that sentence awarded for offence punishable under Section 304A of the Code is modified as simple imprisonment for six months. In all other respects revision petition will stand dismissed. THOMAS P.JOSEPH, Judge. cks