IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Crl.Rev.Pet.No. 799 of 2001() ----------------------------- CRA.113/1998 of II ADDL. SESSIONS COURT, PALAKKAD CC.43/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- HARIDASAN, S/O.KUNCHU KUTTAN, KUMMANTHARA, VEMBALLUR, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.H.BADARUDDIN SRI.C.MUTHUKUTTY RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ALATHUR IN CRIME NO.300/94 OF ALATHUR POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1/10/2009, THE COURT ON 28-10-2009 PASSED THE FOLLOWING: Crl.M.P. No. 3706 of 2001 in Crl.R.P. No. 799 of 2001 Dismissed. 28-10-2009 Sd/- P.Q.Barkath Ali, Judge. /True copy/ P.S. to Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 799 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 28th day of October, 2009 O R D E R Revision petitioner is the accused in C.C. No.43 of 1995 of the Judicial Magistrate of the First Class, Alathur and appellant in Crl.A.No.113 of 1998 of the Court of Session, Palakkad Division. He was convicted under sections 279, 337 and 304A IPC by the trial court and sentenced to undergo rigorous imprisonment for two years under section 304A IPC and rigorous imprisonment for a period of three months each under sections 279 and 337 IPC. Substantive sentences were ordered to run concurrently. His driving licence was suspended for a period of three years. He was found not guilty of offence punishable under section 338 IPC . On appeal by the accused, his conviction and sentence under sections 279 and 337 IPC were confirmed, but while confirming the conviction under section 304A IPC, the sentence was reduced to rigorous imprisonment for a period of one year. 2. The case of the prosecution, as shaped in evidence before the trial court, was that on September 10, 1994 at about 11.45 A.M. the accused drove the a bus bearing registration No. KL-9A 525 in a rash and negligent Crl.R.P. 799/01 2 manner, so as to endanger in human life, through Thrissur - Palakkad road and when it reached at Erattukulam, Karuvattakunnu at Alathur Village, the bus went off the road and hit against the rock situated by the side of the road and as a result of which, three passengers died and 15 other passengers sustained simple injuries and one passenger sustained grievous injuries and that thereby he committed the offences punishable under sections 279, 337, 338 and 304A IPC. 3. When the accused appeared before the trial court, he pleaded not guilty to charge under sections 279, 337, 338 and 304A IPC. PWs.1 to 29 were examined and Exts.P1 to P29 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused denied having committed any offences. On his side, DW1 was examined and Exts.D1 and D2 were marked. The trial court, on an appreciation of the evidence, found him guilty of the offences punishable under sections 279, 337 and 304A IPC, convicted him thereunder and sentenced him as aforesaid. He was found not guilty for an offence under section 338 IPC. On appeal, the lower appellate court confirmed his conviction and sentence under sections 279 and 338 IPC, but reduced the sentence under section 304A IPC to rigorous imprisonment for a period of one year. Now the accused has come up in revision. Crl.R.P. 799/01 3 4. The following points arise for consideration in this case:- 1. Whether the conviction of the revision petitioner under sections 279, 337 and 304A IPC by the trial court which is confirmed in appeal by the lower appellate court can be sustained? 2. Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? 5. On the side of the prosecution, PWs.1 to 29 were examined and Exts.P1 to P29 were marked to prove the guilt of the accused. PWs.1 and 3 are the attestors to Ext.P1 inquest report relating to the deceased Ramandi. PW2 is a passenger in the bus who gave Ext.P2 F.I.S.. He turned hostile and did not support the prosecution. PW4 identified the dead body of deceased Ramandi. PW5 is an attestor to Ext.P3 inquest report relating to deceased Ayyappan. PW6 identified the body of deceased Koyu @ Kanni. PW7 is a friend of deceased Ramandi. PW8 to 20 are the passengers in the bus and they sustained injuries in the accident. PWs.9 to 11 and 13, 14, 17 and 19 turned hostile and did not support the prosecution. PW21 is the doctor who conducted the postmortem examination on the body of the deceased persons and also treated the injured. Exts.P4 to P6 are the postmortem certificates and Exts.P7 to P23 are the wound certificates. PW22 is a Joint R.T.O. attached to the Palakkad R.T. Office who inspected the bus involved in the accident and issued Ext.P24 inspection report. PW23 is the Conductor of Crl.R.P. 799/01 4 the bus who did not support the prosecution case. PW24 is an attestor to Ext.P25 scene mahazar. PW25 is the Head Constable attached to the Alathur Police Station who conducted the inquest on the body of the deceased of Koyu and prepared inquest report. PW26 is the Village Officer who prepared Ext.P27 plan of scene of incident. Pws.27 to 29 are the Investigating Officers. 6. It is not disputed and is proved by the evidence adduced by the prosecution that the bus bearing registration No. KL-9A-525 on 10-9-1994 at about 11.45 A.M. at Erattakulam, Karuvatttakunnu went off the road, hit against the rock on the side of the road, in which three persons died and PWs.8 to 20 who are the passengers of the bus sustained injuries described in the wound certificates Exts.P7 to P29. It is also admitted that the accused was the driver of the said bus at the time of the accident, which is also proved by the evidence adduced on the side of the prosecution. The only question which arises for consideration is whether the accident occurred due to the rash and negligent driving of the bus by the accused. The nature of the accident clearly shows that there was negligence on the part of the driver of the bus. The principle of resipsa locquitor clearly applies in the present case. Further, PWs.8, 16, 18 and 20 testified that the bus was driven at a high speed. Ext.P25 scene mahazar shows that there was tyre mark at a Crl.R.P. 799/01 5 length of 20 metres on the northern side of the road, a similar tyre mark about 7 ½ metres on the south west direction and that there was also tyre mark on the rock at a length of 8 metres. All these would clearly show that the bus was driven at a high speed and went out of control and hit against the rock. An attempt was made to show that the accident happened when to avoid hitting a car coming on the opposite direction, the accused turned the bus to the left side and at that time tyre rod end of the bus broke and the bus went off the road and hit on the rock on the side of the road. DW1 testified that the tyre rod end of the offending bus was broken and he had repaired the same. PW22 the Motor Vehicle Inspector who inspected the bus found no mechanical defect to the vehicle. Even if the evidence of DW1 is believed, the said mechanical defect might have been caused after collision of the bus with the rock on the side of the road. That apart, PWs.8 to 20 passengers did not say that at the time of the accident any car was coming from the opposite side. Nothing was also suggested to them regarding the breaking of tyre rod end during their cross-examination. For all these reasons I am inclined to hold that the trial court as well as the lower appellate court is perfectly justified in finding the accused guilty of the offences punishable under sections 279, 337 and 304A IPC and convicting him thereunder. Crl.R.P. 799/01 6 7. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for two years under section 304A IPC, which is reduced to rigorous imprisonment for one year by the lower appellate court. The trial court imposed a sentence of rigorous imprisonment of three months each under sections 279 and 337 IPC, which is confirmed in appeal by the lower appellate court. Driving licence of the accused was also suspended for a period of three years. In the present case, three persons died in the accident. Therefore, I find no special reason to reduce the sentence. 8. In the result, upholding the conviction and sentence of the revision petitioner by the trial court, which is confirmed in appeal, this revision petition is dismissed. The revision petitioner/accused shall surrender before the trial court on or before 30-11-2009 to suffer the sentence. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn Crl.R.P. 799/01 7 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 799 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 28th October, 2009