IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.Rev.Pet.No. 1216 of 2003() ------------------------------ CRA.77/1999 of ADDL.SESSIONS COURT (FAST TRACK-III, MANJERI CC.21/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- HAMEED, S/O. ABDU RAHIMAN, PULAKKAL HOUSE, PAYYANADAM, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/STATE: --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MELATTOR POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1216 OF 2003 --------------------------------------------- Dated 29th June, 2010 O R D E R Petitioner, accused in C.C.21/1996 was convicted for the offences under Sections 279, 337 and 338 of Indian Penal Code and Section 184 read with Section 177 of Motor Vehicles Act by Judicial First Class Magistrate-II, Perinthalmanna. Petitioner challenged the conviction and sentence before Sessions court, Manjeri in Crl.A.77/1999. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Revision petitioner would contend that none of the witnesses CRRP 1216/03 2 identified petitioner as the driver of the bus and therefore, conviction of the petitioner is illegal. It is also contended that from the evidence of the witnesses, at best it could be said that the bus was being run in over speed, which by itself will not constitute the offences alleged and the witnesses have not spoken about any negligence attributed to the driver and the courts below did not properly appreciate the material contradictions, omissions and discrepancies in the evidence and therefore, conviction is unsustainable. 3. Prosecution case is that petitioner was the driver of bus KL-10-B- 1072 which was proceeding along Melattur- Perinthalmanna public road on 5/12/1995 at about 12.45 p.m. Petitioner was driving the bus rashly and negligently, so as to CRRP 1216/03 3 endanger human life. When it reached near Melattur Bazar, it capsized after covering a hump due to the said rash and negligent driving and caused hurt and grievous hurt to 35 passengers. Petitioner thereby committed the offence. Petitioner pleaded not guilty. Prosecution examined 28 witnesses and marked Ext.P1 to P40. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that though many of the witnesses turned hostile, evidence of Pws.1,3,4,5,6 and 13 establish that petitioner was the driver of the bus and the bus after covering a hump due to the rash and negligent driving of the petitioner capsized, causing hurt and grievous hurt to 35 passengers including Pws.1 to 6 and thereby committed the offences. Though petitioner contended that the incident was not due to any negligent, CRRP 1216/03 4 but due to mechanical defect, relying on the evidence of PW22, AMVI and Ext.P39 inspection report it was found that there was no mechanical defect to the vehicle and the evidence establish that immediately before the bus capsized, petitioner had lighted a cigarette and was not in control of the vehicle and in such circumstances, he was found guilty of the offences. He was sentenced to simple imprisonment for three months and fine of Rs.1,000/- for the offence under Section 279 and simple imprisonment and fine of Rs.500/- for the offence under Section 337 and simple imprisonment for six months and fine of Rs.1,000/- for the offence under Section 338 and fine of Rs.100/- and in default simple imprisonment for ten days for the offence under Section 184 read with Section 177 of CRRP 1216/03 5 Motor Vehicles Act. All the substantive sentences were directed to be run concurrently .Petitioner was also granted set off as provided under Section 428 of Code of Criminal Procedure. Learned Sessions Judge re-appreciated the evidence and confirmed the conviction and sentence. 4. Argument of the learned counsel appearing for the petitioner is that none of the witnesses identified petitioner as the driver of the bus and in any event evidence do not disclose that the bus capsized due to the rash and negligent driving and on the evidence it should have been found that bus capsized only due to mechanical defect. Learned Public Prosecutor pointed out that the evidence of Pws.1,4,5 and 6 injured passengers of the bus who had opportunity to identify the driver while travelling in that CRRP 1216/03 6 bus, identified petitioner as the driver, which was not challenged in cross examination and therefore, petitioner is not entitled to dispute his identity as driver of the bus. It was also pointed out that the evidence of Pws.1,4,5, and 6 along with that of Pws.3 and 13 establish that just before the bus capsized there was hump and when the bus was covering that hump petitioner was lightening a cigarette and the bus was being driven in over speed and as a result it capsized and it is also proved that 35 passengers of the bus sustained hurt and grievous hurt by the evidence of PW7, the doctor with Exts.P2 to 36 wound certificates and therefore, conviction is perfectly legal. 5. Though revision petition petitioner disputed his identity, when CRRP 1216/03 7 Pws.1,4,5,6,14,24,25 and 27 were examined, they identified petitioner as the driver of the bus at the relevant time. Their version that petitioner was the driver was not challenged in cross examination. It is seen that when petitioner was questioned under Section 313 of Code of Criminal Procedure also, he has no case that he was not the driver of the bus. When he was asked whether he has anything more to say apart from answering to the question put to him, he only stated that the incident was not due to his negligence but as the leaf of the bus had broken. Therefore, petitioner is not entitled to contend before the revisional court that he was not the driver of the bus at the relevant time, as he did not dispute that fact when the witnesses were being examined. CRRP 1216/03 8 6. Fact that passengers of the bus sustained hurt and grievous hurt is not disputed. As rightly found by the courts below evidence of PW7 the doctor with Exts.P2 to 36 wound certificates establish that 35 passengers of the bus was examined by him and noted the injuries recorded in Exts.P2 to 36 wound certificates. Ext.P2 wound certificate shows that the injured sustained fracture of humor. Exts.P4 to P11 wound certificates also establish that those injured also sustained fractures. The other injured only sustained hurt. In such circumstances, fact that those victims were passengers of the bus and they sustained injuries were also not disputed. Therefore, prosecution has established that consequent to the capsizing of the bus, 35 passengers of the bus sustained injury and several of CRRP 1216/03 9 them sustained grievous hurt and others simple hurt. 7. Crucial question is whether the bus capsized due to the rash and negligent driving of the bus by the petitioner. Though it is contended by the revision petitioner and it was argued by the learned counsel that the evidence of witnesses do not establish that there was no negligence on the part of the petitioner and at best it would only show there was over speed, as rightly pointed out by the learned Public Prosecutor evidence is otherwise. Evidence of Pws.1,3,4,5 and 13 establish that just before the bus capsized, petitioner was lightening a cigarette and was not taking proper care in driving the bus. Their evidence also establish that bus was in over speed. It is also in evidence that in spite CRRP 1216/03 10 of the fact that there was a hump in the road, petitioner did not slow down the vehicle. It is in such circumstances, petitioner lost control of the vehicle and the bus capsized. Though it was contended that the bus over turned not because of the negligent driving but because of mechanical defect, as rightly found by the courts below, Ext.P39 report of AMVI with evidence of PW22 conclusively establish that there was no mechanical defect to the vehicle before the incident. Though leaf was found broken, evidence establishes that it was in the incident, when the bus capsized the damage was caused and not before the incident. Even if leaf was broken the bus would not have capsized. In such circumstances, finding of the courts below that petitioner was driving the bus rashly CRRP 1216/03 11 and negligently, so as to endanger human life and by such driving caused grievous hurt and hurt to 35 passengers is in accordance with the evidence. In such circumstances, conviction of the petitioner for the offences is perfectly legal and warrants no interference. 8. Then the only question is regarding the sentence. Argument of the learned counsel is that incident occurred in 1995 and at this distant point of time petitioner may not be sent to prison and leniency may be shown. Petitioner was the driver of the stage carriage bus. Life of the passengers of the bus is definitely in the hands of the driver of the bus. Evidence establish that petitioner was grossly negligent in driving the bus. Considering the fact that the driver of the stage CRRP 1216/03 12 carriage bus are unconcerned about the safety of the passengers and incidents of this are common, interest of justice does not warrant any leniency. In such circumstances, I find no reason to interfere with the sentence also. Revision fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.