IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 125 of 2000() ----------------------------- CRA.436/1998 of V ADDL.SESSIONS COURT, ERNAKULAM CC.978/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- VISWANATHAN AGED 45, S/O.RAMAKRISHNAN PILLAI, THITHAPANAAPARAMBIL, WESTERN SIDE OF MAHARAJA'S HOSPITAL, PALLURUTHY, RAMESWARAM VILLAGE, NOW RESIDING AT PURUSHAN'S HOUSE, NEAR JACOB NURSING HOME, THOPPUMPADY. BY ADV. SRI.JAIJI ITTEN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE REP. BY C.I. CITY TRAFFIC POLICE STATION KOCHI CITY. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.125 OF 2000 --------------------------------------------- Dated 10th August, 2010 O R D E R Petitioner, driver of Gurudevan bus bearing registration No.KEE-6510 which hit on the rear side of Anand bus bearing registration No.KLY-5263, which was parked and alighting passengers and thereby caused death of a passenger of Anand bus and grievous hurt and hurt to several other passengers of both the buses, was convicted and sentenced to rigorous imprisonment for one year for the offence under Section 304 A, a fine of Rs.750/- and in default simple imprisonment for 45 days for the offence under Section 279, a fine of Rs.500/- and in default simple imprisonment for 45 days for the offence CRRP 125/00 2 under Section 337, and fine of Rs.1,000/- and in default simple imprisonment for six months for the offence under Section 338 of Indian Penal Code in C.C.978/1995 on the file of Judicial First Class Magistrate-II, Kochi filed this revision challenging the conviction and sentence as confirmed by Additional Sessions Judge, Ernakulam in Crl.A.436/1998. 2. On 5/12/1994 at about 3 p.m Anand bus KLY-5263 was admittedly parked on the northern side of the road lying east-west and alighting its passengers. Petitioner was driving Gurudevan bus. Both buses were proceeding from west to east. Gurudevan bus hit on the rear side of Anand bus. As a result Anand bus moved forward and consequently ran over Beena, daughter of PW1 and caused her death due to the injuries and also caused CRRP 125/00 3 grievous hurt to PW1 and other passengers. PW45 Sub Inspector of City Traffic Police based on Ext.P56 first information statement given by PW4 registered the case and conducted the investigation. PW49 Circle Inspector laid the charge. Petitioner pleaded not guilty. Prosecution examined Pws.1 to 49 and marked Exts.P1 to P58. On the side of the petitioner DW1, a motor mechanic, was examined. Learned Magistrate on appreciation of evidence found the petitioner guilty and convicted and sentenced him. In the appeal learned Sessions Judge on re-appreciation of evidence confirmed the conviction. Revision is filed challenging the conviction and the sentence. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRRP 125/00 4 4. Argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that except very few witnesses, all other witness including the injured passengers turned hostile and courts below on the evidence of some of the prosecution witnesses should not have been found that petitioner was driving the bus rashly and negligently. It was argued that evidence of DW1 establishes that the bus had mechanical defect which caused the accident and hence, it should have been found that it was a mere accident and not an incident caused by negligent driving by the petitioner. It was argued that prosecution witnesses themselves admitted that before Gurudevan bus hit on the rear side of Anand bus. Petitioner cried aloud informing the passengers that its brake system CRRP 125/00 5 had failed and in such circumstances, it should have been found that the incident was not due to any rash and negligent driving of the bus by the petitioner. It was finally argued that as the incident was in 1994, at this distant point of time petitioner may not be sent to prison and the sentence may be modified. 5. 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. 6. Though petitioner had disputed his identity as the driver of Gurudevan bus, courts below found that when questioned under Section 313 of Code of Criminal Procedure petitioner admitted that he was the driver of Gurudevan bus at the relevant time. Courts below also CRRP 125/00 6 found that Pws,1,4,41,and 48 also identified petitioner as the driver of Gurudevan bus. In the light of the evidence, courts below rightly found that the petitioner was driving Gurudevan bus from west to east. 7. Fact that Gurudevan bus hit on the rear side of Anand bus which was parked on the northern side of the road, while its passengers were alighting, was not disputed at the time of evidence. Only contention raised by the petitioner was that his bus hit on the Anand bus not due to his negligent driving and it was an inevitable accident consequent to the failure of brake system. Courts below on appreciation of evidence found that Beena, daughter of PW1 died consequent to the injuries sustained as proved by the postmortem certificate and the evidence of the doctor CRRP 125/00 7 which was not disputed. Fact that Pws.8,7,6,9, 21,12,13, 11, 14, 16,17, 41,18,2 and 34 were respectively examined by PW39 and recorded Ext.P14 to 29 wound certificates were not disputed. So also, other passengers though not examined also sustained injuries is proved by the evidence of PW40 the doctor with Ext.P31 wound certificate, PW43 with Exts.P35 and 36 certificates. These facts were also not disputed. Evidence of PW1 with Ext.P35 wound certificate and evidence of PW44 doctor establish that her leg had to be amputated due to the injury sustained. Therefore prosecution conclusively established that death of a passenger was caused by the injuries sustained and grievous hurt and hurt were caused to several other passengers. 8. The only question is whether the CRRP 125/00 8 said injuries were caused due to the rash and negligent driving of Gurudevan bus by the petitioner. Though petitioner raised a contention that his bus hit on Anand bus, which was parked and alighting passengers only due to mechanical defect, learned Magistrate and learned Sessions Judge based on the evidence of PW47 motor vehicle Inspector with Ext.P57 certificate of inspection found that there was no mechanical defect to the bus at that time. Though learned counsel argued that evidence of DW1 should have been preferred to the evidence of PW47, it cannot be disputed that PW47, is better qualified. DW1 admitted that he is not a qualified mechanic, though he claimed that he has experience. On the evidence of PW47, with Ext.P57 certificate, evidence of DW1 was rightly not accepted by the learned CRRP 125/00 9 Magistrate and learned Sessions Judge. Evidence establish that there was no mechanical defect, due to failure of brake system as contended by the petitioner. In such circumstances, it is conclusively proved that but for the rash and negligent driving of the bus by the petitioner, it would not have hit on the rear side of Anand bus which was parked on the proper side of the road and was alighting the passengers. On the evidence, findings of the courts below that petitioner was driving the bus rashly and negligently and by such rash and negligent driving of the bus hit on the rear side of another bus which was parked and alighting passengers and caused death and grievous hurt and hurt to the passengers is perfectly correct. In such circumstances, conviction of the petitioner for the offence CRRP 125/00 10 under Sections 279, 337, 338 and 304 A of Indian Penal Code is perfectly legal and warrants no interference. 9. Then the only question is with regard to the sentence. Evidence establish that petitioner was driving the bus without any care for the safety of the passengers travelling in his bus or the passengers who were alighting from the bus, which was parked on the proper side of the road. In the nature and circumstances of the case, though the incident was in 1994, I find no reason to interfere with the sentence. Driver of a stage carriage bus, who did not care for the safety of the passengers should adequately be punished for the rash and negligent driving causing the death and grievous hurt to the passengers. In such circumstances, sentence can only be CRRP 125/00 11 confirmed. Revision fails and is dismissed. Learned counsel appearing for the petitioner submitted that in spite of notice sent to the petitioner he has no information regarding the sentence. In such circumstances, Judicial First Class Magistrate-II, Kochi is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.