IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 1445 of 2001() ------------------------------ CRA.150/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.535/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- EZHUKULATHIL RAVEENDRAN, S/O.CHATHU, EZHUKULATHIL HOUSE, P.O. PUNNASSERI, NANMINDA AMSOM, KUTTAMPOOR DESOM, KOZHIKODE BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: -------------------------------------------------------------------- STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.I.B. PRAMOD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1445 of 2001 ORDER ON CRL.MP.NO.6856/2001 IN CRL.RP.NO.1445/2001 DISMISSED 19/05/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No. 1445 OF 2001 -------------------------- Dated this the 19th day of May, 2010 O R D E R Petitioner, driver of bus bearing No. KL 11/C 1602, the accused in C.C. No.535 of 1995 on the file of the Judicial First Class Magistrate-III, Kozhikode, was convicted and sentenced to simple imprisonment for three months each for the offences under Sections 279, 337 and 338 of Indian Penal Code. Though petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl. Appeal No.150 of 1999, the learned Sessions Judge on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 18.3.1995 at about 9 AM petitioner was driving the bus KL 11/C 1602, in a rash and negligent manner so as to endanger human life along Kozhikode- Balussery road and when it reached Maruthadvalavu, seeing a jeep coming from the opposite direction he swerved the bus to the right Crl. R.P..No.1445/01 2 in a reckless manner and the bus forcibly hit on the compound wall on the right side and demolished the compound wall and entered partially inside the compound causing grievous hurt to PWs 1 and 2 and simple hurt to PWs 3, 4 and 6 and thereby committed offences under Sections 279, 337 and 338 of the Indian Penal Code. Though petitioner pleaded not guilty, learned Magistrate on the evidence of PWs 1 to 16 found that petitioner was driving the bus rashly and negligently so as to endanger human life and by such driving caused grievous hurt to the passengers and convicted him. The argument of the learned counsel is that though the learned Magistrate found petitioner guilty, the evidence was not properly appreciated as the fact that the jeep was coming from the opposite direction recklessly and negligently, as proved by the evidence, was ignored. It was argued that as per the evidence if the petitioner had not swerved the vehicle from the proper side, along which it was proceeding, the jeep would have hit on the bus and injuries would have been caused to the passengers and in order to save the life of the passengers of the bus, petitioner swerved the vehicle to the right and the fact that the bus hit on the compound wall is not due to any reckless driving or Crl. R.P..No.1445/01 3 negligence but because of reasons beyond his control and hence the conviction is not sustainable. Learned counsel argued that even if it is found that the petitioner was driving the vehicle negligently and caused injuries to the witnesses, as found by the courts below, the sentence awarded is disproportionate to the offences. It was argued that considering the nature of the offences, incident and the injury sustained by the witnesses, leniency should have been shown. Leaned counsel submitted that the incident occurred in 1995 and subsequently petitioner got employment in Gulf and if sentence is to be sustained, petitioner would have to forego his employment and the means of livelihood and in such circumstances, the sentence be modified and the petitioner is prepared to compensate the injured and hence leniency be shown. 4. Ext.P2 scene mahazar and the oral evidence recorded establish that the road at the place is lying North-South. There was vision to about 60 metres to the South and 200 metres to the North. The tar road was having a width of 5.25 metres. The eastern road margin was 160 cms and western road margin was 160 cms. Petitioner was driving the bus from South to North. Therefore his Crl. R.P..No.1445/01 4 proper side was west. True, the evidence showed that a jeep was coming from the opposite direction and it was also being driven in a high speed and if something was not done, there would have been a collision. But, that will not justify the action of the petitioner. It is to be borne in mind that the bus had proceeded further towards the east and hit the compound wall, which is situated at 6.6 metres to the east of the eastern road margin. The speed of the vehicle could be clearly estimated from the damages caused to the compound wall and the vehicle. The scene mahazar establish that the compound wall was demolished by the impact of the bus and the bus partly entered into the compound wall. Therefore, no further evidence is needed to establish that the bus was driven at a high speed, rashly and negligently. Even if it is to be taken that to avoid collision, the bus has to be swerved from its proper course, when there is a road margin of 160 cms to the west, but for the negligent and reckless driving petitioner would not have swerved the vehicle to the right and that too in that much speed. In such circumstances, on appreciating the entire evidence, I find no reason to interfere with the finding of the courts below that petitioner was driving the bus rashly and negligently Crl. R.P..No.1445/01 5 so as to endanger human life and by such driving caused the incident. 5. The evidence of PWs 1,2,3,4 and 6 with the evidence of Pws 10,12 and 13 the doctors, and Exts.P4 to P7 establish that due to the rash and negligent driving grievous hurt and hurt were caused to the passengers. Hence conviction of the petitioner for the offences under Sections 279, 337 and 338 of the Indian Penal Code is perfectly legal, proper and regular. 6. Then the question is regarding the sentence. The courts below imposed only simple imprisonment for three months each for all the offences. The argument of the learned counsel is that considering the fact that the jeep was coming from the opposite direction in a high speed and if the petitioner had not swerved the vehicle, the jeep would have hit on the bus and the same injuries, if not more, would have been caused, leniency has to be shown. Considering the entire facts and circumstances of the case including the fact that the threat of imprisonment was hanging over the head of the petitioner for more that one and a half decade, it would be in the interest of justice to modify the sentence with adequate Crl. R.P..No.1445/01 6 compensation to the injured. PWs 1 and 2 sustained grievous hurt and PWs 3,4 and 6 sustained simple hurt. The interest of justice will be served if the sentence is modified to imprisonment till rising of the court and a compensation of Rs.10,000/- each to PWs 1 and 2, Rs.8,000/- to PW3 and Rs.5,000/- each to Pws 4 and 6 and in default simple imprisonment for one month each for the offences under Sections 338 and 337 of Indian Penal Code. For the offence under Section 279, the petitioner is sentenced to a fine of Rs.1,000/-. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 279, 337 and 338 of Indian Penal Code are confirmed. The sentence awarded for the offence under Section 338 of Indian Penal Code is modified to imprisonment till rising of court and a compensation of Rs.10,000/- each to PWs 1 and 2. Conviction for the offence under Section 337 of Indian Penal Code is confirmed and sentence is modified to imprisonment till rising of court and a compensation of Rs.8,000/- to PW3 and Rs.5,000/- each to PWs 4 and 6 and in default simple imprisonment for one month each. The sentence for the offence under Section 279 of Indian Penal Code is modified to a fine of Rs.1,000/- and in default simple Crl. R.P..No.1445/01 7 imprisonment for one month. The petitioner is directed to appear before the learned Magistrate on 1.7.2010 to receive the sentence. M.SASIDHARAN NAMBIAR (Judge) vps Crl. R.P..No.1445/01 8