IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 3142 of 2006() ------------------------------ CRA.552/2002 of ADDL. SESSIONS COURT, ALAPPUZHA CC.118/2000 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- MOHAN RAJ, AGED 48, S/O.KUNJUKRISHNAN NADAR, THADATHARIKATHU VEEDU, THAVAMPARA, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTORV.T.K.MOHANAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 21/05/2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3142 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st May, 2009 ORDER Challenge in the revision is against the concurrent verdict guilty rendered against the revision petitioner/accused for the offences under Sections 279, 337, 338 and 304(A) I.P.C. The learned Magistrate, after trial, found him guilty. Convicted of the offences he was sentenced to undergo simple imprisonment for one month each under Sections 279 and 337 I.P.C. and simple imprisonment for six months each under Sections 338 and 304(A) I.P.C., directing to undergo the sentences concurrently. In appeal, the learned Sessions Judge confirmed the conviction and also the sentence without any modification. Aggrieved by the conviction and sentence as concurrently found by the two courts below, the accused has preferred this revision. 2. The gist of the prosecution case is that the accused, a driver employed in K.S.R.T.C. drove a K.S.R.T.C. bus, bearing No.KL-15/3732, through Alappuzha-Ernakulam National Highway from north-south direction in a rash and negligent manner at an enormous speed, endangering human life, on the evening of 21.9.2000, and while so, at about 5.25 p.m. on account of his rash Crl.R.P.No.3142/06 - 2 - and negligent driving, the K.S.R.T.C. bus had a head on collision with a maruti van, bearing Registration No.KL-7/T 3008, which came from the opposite direction, and as a result of which, the driver of that maruti van and the passengers in that vehicle suffered grievous injuries. The driver of the maruti van later succumbed to the injuries while undergoing treatment in hospital. Crime registered over the occurrence, after investigation, led to the indictment of the accused for the offences punishable under Sections 279, 337, 338 and 304A IPC. 3. The accused, on appearance before the court, pleaded not guilty when the particulars of the offences were made known. Prosecution examined Pws.1 to 17 and Exts.P1 to P19 to prove its case. The accused maintained his innocence when questioned under Section 313 Cr.P.C. He did not adduce any defence evidence. The learned Magistrate, after appreciating the materials, found him guilty of the offences and he was thereupon convicted and sentenced as indicated above, which in appeal, was confirmed by the learned Sessions Judge without any modification. 4. I heard the learned counsel for the accused and also the learned Public Prosecutor. The concurrent verdict of guilty passed against the accused is assailed by his counsel contending both the Crl.R.P.No.3142/06 - 3 - courts below misappreciated the evidence and that has resulted miscarriage of justice. The informant, PW2, at whose instance, the crime was registered had turned hostile to the prosecution case, is highlighted by the counsel as a material circumstance discrediting the prosecution case as a whole. Exts.P6 and P7 were pressed into service at the time of evidence alone, without previous notice to the accused, and it has caused prejudice to him and further vitiated the trial, contends the counsel. The identity of the accused as the driver of the offending vehicle remained not established by convincing legal evidence and, further, there was no material in the case to conclude that the occurrence arose solely on account of the culpable criminal rash and negligent driving by the driver of the K.S.R.T.C. bus, submits the counsel. The head on collision of the two vehicles moving in opposite directions, the K.S.R.T.C. bus and the maruti van, in the absence of positive direct evidence proving the guilt of one of the drivers, according to the learned counsel, should be viewed as an inevitable accident arising out of error of judgment by the drivers of both vehicles. The brake system of the maruti van inspected after the occurrence was found damaged, according to the learned counsel, is indicative that the occurrence arose not on account of the fault of the K.S.R.T.C. driver, but by the mechanical defect of the maruti van. Crl.R.P.No.3142/06 - 4 - In the alternative, it is urged that if for any reason conviction of the accused is found sustainable, he may be released invoking the benevolent provisions of the Probation of Offenders Act, 1958, submitting that he is the sole breadwinner of his family and also that the prosecution against him has been pending for the last seven years. To seek the application of the benevolvent provisions of the Probation of Offenders Act, in favour of the accused, the counsel has placed reliance on Paul George v. State of NCT of Delhi [(2008) 4 SCC 185]. 5. I have perused the records of the case giving consideration to the submissions made by the learned counsel on both sides. I find no merit in the grounds canvassed by the counsel to impeach the conviction of the accused concurrently founded by the courts below. In the occurrence the driver of the maruti van succumbed to the injuries, and his wife, PW4, a passenger in the van, suffered serious fracture apart from other injuries. Pws.5 and 6, two other passengers in the van also sustained injuries. Some of the passengers in the K.S.R.T.C. bus including PW2 also received injuries. The evidence of Pws.3, 4, 5 and 6 clearly demonstrate that the offending vehicle, the K.S.R.T.C. bus, was driven by its driver at an enormous speed and the rash and negligent driving of that vehicle Crl.R.P.No.3142/06 - 5 - caused the occurrence. PW3 has given a graphic picture as to how the occurrence took place. The K.S.R.T.C. bus came through the wrong side of the road at an enormous speed. The driver of the maruti van, her husband, took his vehicle to the extreme left side of the road seeing the K.S.R.T.C.bus coming at enormous speed from the opposite direction through the wrong side, still, the bus dashed and collided with the van, is her version. Her evidence is corroborated by PW4, another passenger in the van. Both of them have also identified the accused as the driver of the K.S.R.T.C. bus. Ext.P10 scene mahazar prepared over the scene of occurrence indicate beyond the shadow of doubt that the occurrence arose on account of the culpable criminal rash and negligent driving of the K.S.R.T.C. bus by the accused. The road at the spot has a width of 7 metres, and the K.S.R.T.C. bus was coming from north to south direction and the van from the opposite direction, south to north. It is also seen that beyond the tarred portion of the road on both sides, there is sufficient road margin, on the west 2.50 metres and the east 2.60 metres. Place of occurrence is determined as 1.5 metre towards east from the western tarred end of the road, which demonstrate how far the K.S.R.T.C. bus driven by the accused had deviated to the wrong side of the road. When the occurrence Crl.R.P.No.3142/06 - 6 - witnesses including the injured were subjected to cross examination, a suggestion is seen projected that the bus driver attempted to save a scooterist who suddenly cut across the road and to avoid hitting against the scooterist the bus was swerved to the wrong side, and it resulted in the occurrence. Except P.W.2, all the other ocular witnesses refuted that suggestion. PW2, for reasons best known, had disowned her previous version before the police, on which the crime was registered. Occurrence alleged by the prosecution is established by the evidence of ocular witnesses who suffered injuries in the accident. The brake system of maruti van was found damaged on inspection over the vehicle, which was canvassed by the counsel as a material circumstance that the occurrence could have resulted due to the mechanical defect of the vehicle had to be noticed only for its rejection. The evidence of the Motor Vehicle Inspector would indicate that the brake system of the maruti van was damaged due to the accident, whereas the K.S.R.T.C. bus, on inspection, was found to have no mechanical defects at all and its brake system was efficient. The grievance raised by the accused that Exts.P6 and P7 were improperly admitted in evidence has no merit at all. Exts.P6 and P7 are the way bill and vehicle log sheet respectively, of the K.S.R.T.C. bus on the date of occurrence indicating that the accused was the Crl.R.P.No.3142/06 - 7 - driver of that bus on the above date. True Exts.P6 and P7 were not produced along with the charge sheet, but produced only when P.W.8, Checking Inspector of the K.S.R.T.C. was examined. The evidence of P.W.8 would show that after his examination in chief was conducted for some time, it was adjourned at the request of the prosecution for the purpose of production of way bill of the vehicle to identify the driver of that vehicle at the time of occurrence. On the adjourned date the witness produced the documents and they were exhibited in evidence without any objection from the accused. Merely because those documents were not produced earlier with the charge sheet, the accused cannot contend that he had no notice of their production. Even if Exts.P6 and P7 are ignored from consideration, still the identity as to who was the driver of the offending vehicle is fully established by the cogent and convincing evidence of P.Ws.3 and 4, both of them passengers in the van and injured in the occurrence. Interestingly, no challenge was made to dispute the evidence given by P.Ws.3 and 4 in the identification of the accused as the driver of the bus. As far as P.W.4, her evidence on that score was sought to be impeached only on the premise that the police had not conducted an identification parade to fix the identity of the driver through her. The totality of the proved facts and circumstances involved in the Crl.R.P.No.3142/06 - 8 - case as borne out by the materials produced unerringly establish that the reckless driving of the K.S.R.T.C. bus at an enormous speed with culpable criminal rashness by the driver of that bus, the accused, was solely responsible for the occurrence, which resulted in the death of one person and injuries to several others with one among them (PW3) suffering grievous injuries including fracture of her pelvic bone, on account of which she could not even sit even at the time of her examination before the court, as seen from her evidence. Conviction of the accused is seen fully supported by the legal evidence tendered in the case and there is no merit in the revision. 6. The plea canvassed by the learned counsel to release the accused on probation invoking the benevolent provisions of the Probation of Offenders Act, in the given facts of the case, cannot be entertained. The decision rendered by the counsel in Paul George v. State of NCT of Delhi [(2008) 4 S.C.C. 185] has no application to the given facts of the case. The facts of the above case disclose that the driver involved in the occurrence was a Police Constable and the accident occurred when he was entrusted with the task of delivering a wireless message to the police headquarters. Taking note that his prosecution had continued for 20 years, with the question whether sanction was required for his prosecution remained unsettled, and Crl.R.P.No.3142/06 - 9 - considering the surrounding facts also, the apex court ordered for release of the accused on probation, noting that he had been dismissed from service on account of his conviction. I find, the accused in the present case, having regard to the proved facts and circumstances of the case, is not entitled to be released on probation under of the provisions of the Probation of Offenders Act. Sufficient indulgence had been shown by the trial magistrate in the matter of punishment, which, as confirmed by the learned Sessions Judge, does not call for any interference or modification. The revision is devoid of any merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE