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. 1403 of 2003() ------------------------------ CRA.267/1998 of ADDL. SESSIONS COURT (ADHOC-i), THALASSERY CC.974/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- B. PUSHKARAN, S/O. BHARGAVAN, AGED 53 YEARS, KADAMBUR, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA-S.H.O., KANNUR TOWN POLICE STATION, REPRESENTD BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR 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.1403 OF 2003 --------------------------------------------- Dated 29th June, 2010 O R D E R Petitioner, driver of stage carriage bus filed this revision challenging his conviction and sentence for the offence under Sections 279 and 338 of Indian Penal Code by Judicial First Class Magistrate-I, Kannur in C.C.974/1995. Prosecution case is that on 2/8/1995 at about 7.20 a.m PW1 injured and PW2 her husband were traveling from Edakkad to Kannur in bus No.KL-11- 2004. Petitioner was the driver. They got down at Caltex Junction bus stop. While PW1 was getting down from the bus, rashly and negligently petitioner moved the bus. Consequently, PW1 fell down and sustained fracture of right radius and thereby CRRP 1403/03 2 committed the offences. Petitioner pleaded not guilty. Prosecution examined apart from Pws.1 and 2, Pws.3 and 4 passengers of the bus who were eye witnesses to the incident and also PWs.5 to 12 and marked Exts.P1 to P6. Petitioner did not dispute the fact that he was the driver of the bus. Defence was that he started the bus on getting signal and PW1 sustained injury due to her negligence while getting down from the bus while it was moving. Learned Magistrate on the evidence of Pws.1 to 3 found that petitioner started the bus and moved it while PW1 was getting down from the bus and it was rash and negligently driving and by such driving caused grievous hurt to PW1. He was thus convicted. Learned Sessions Judge on re-appreciation of the evidence confirmed that findings. It is challenged in the revision contending that courts below did CRRP 1403/03 3 not properly appreciate the evidence and in any case the sentence awarded is excessive. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. Argument of the learned counsel is that courts below should not have believed the evidence of PW4 brother of PW2, as his presence in the bus was not stated in Ext.P1 FI statement and PW4 was not a passenger of the bus. Learned counsel argued that though PW2 denied the case that signal was given to the driver by the cleaner to start the bus, PW1, PW3 and PW4 did not deny that fact and evidence of PW5 cleaner, who was not cleaner on that day, prove that petitioner started the bus only after getting signal and therefore, conviction of the petitioner is not sustainable. Learned counsel finally argued that in any case, the only injury sustained is fracture on the wrist CRRP 1403/03 4 as doctor could found a swelling and no other injury which will not be the case if the bus was moved in speed and in such circumstances, leniency may be shown in the sentence, if conviction is to be confirmed. 3. Fact that Pws.1 to 3 were passengers of the bus on that day or fact that petitioner was driving that bus were not disputed. So also fact that PW1 fell down while getting down from the bus at Caltex Junction bus stop and she sustained fracture as proved by Ext.P6 wound certificate was not challenged before the courts below or even before this court. Only question to be decided is whether PW1 fell accidentally or on account of negligence of PW1 or on account of the negligence of the petitioner. There is no specific case for the petitioner that PW1 accidentally fell from the bus. Though PW8 CRRP 1403/03 5 cleaner of the bus on that day, has given evidence that PW1 might have fallen while getting down due to the sari worn by her, such a case was not even suggested to PW1 or PW2. Case of accidental fall can only be rejected. Then the question is whether PW1 got down from the bus after the cleaner has given signal as claimed by the petitioner or petitioner started the bus and moved it while she was getting down without exercising proper care. Evidence of PW1 is that after the bus stopped at the bus stop, she was getting down and then driver moved the bus and consequently, she fell down from the bus and sustained injury. PW2, her husband also corroborated that evidence. PW3 the passenger of the bus also deposed that PW1 while getting down from the bus fell down and conductor had not given signal before PW1 fell down from the bus to enable the driver to move the bus. CRRP 1403/03 6 Argument of the learned counsel is that evidence of Pws.1 to 3 cannot be believed. True, if PW4 brother of PW.2 was in the bus, in Ext.P1 FI statement it would have definitely stated that apart from PW2, the husband, PW4 the brother of PW2 was also present. It is more so, when incident occurred at about 7.20 a.m on 2/8/1995 and Ext.P1 statement was furnished only at 6.45 p.m on 2/8/1995. It is thus absolutely clear that PW4 was not in the bus as a passenger and he could not have been there to witness the incident. Therefore, evidence of PW4 is to be achieved. Though learned counsel argued that as Pws.1 to 3 did not deny the fact that signal was given by the cleaner to start the bus and thereafter petitioner started the bus, Pws.1 to 3 only deposed that they did not see the signal given. But PW2 asserted that no signal was given. CRRP 1403/03 7 Though learned counsel relied on the evidence of PW5, who claims that he was cleaner, though not on duty at that time, that cleaner of the bus had given signal. If PW8 had given signal that fact would have been definitely stated by PW8. He has no such case. Therefore, on the evidence, it can only be found that no signal was given to the petitioner to move the bus. If that be so, there is no reason to disbelieve the evidence of Pws.1 to 3 that PW1 fell down from the bus, only due to the rash and negligent driving of the petitioner who started the bus while PW1 was alighting from the bus. In such circumstances, conviction of the petitioner for the offence under Sections 279 and 338 of Indian Penal Code is perfectly legal. 5. Then the question is regarding sentence. Learned Magistrate sentenced the CRRP 1403/03 8 petitioner to simple imprisonment for three months for the offence under Section 279 of Indian Penal Code and six months for the offence under Section 338 of Indian Penal Code. Considering entire facts and circumstances of the case, it is clear that negligence shown by the petitioner was moving the bus before passengers got down from the bus. True, by such negligent driving, grievous hurt was caused to PW1. But considering the entire facts, interest of justice will be met, if sentence for the offence under Section 279 of Indian Penal Code is modified to the maximum fine provided for the offence and imprisonment till rising of court and compensation of Rs.10,000/- to be paid to PW1, the injured and in default simple imprisonment for one month for the offence under Section 338 of Indian Penal Code. Revision is allowed in part. Conviction CRRP 1403/03 9 of the petitioner for the offences under Sections 279 and 388 of Indian Penal Code is confirmed. Sentence awarded by the learned Magistrate as confirmed by the learned Sessions Judge is set aside. Petitioner is sentenced to pay a fine of Rupees Ten Thousand (Rs.10,000/-) for the offence under Section 279 of Indian Penal Code and imprisonment till rising of court and compensation of Rs.10,000/- to PW1 and in default simple imprisonment for one month. Petitioner is directed to appear before Judicial First Class Magistrate-I, Kannur on 2/8/2010. Learned Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.