IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.Rev.Pet.No. 1094 of 2009 ------------------------------ CRA.428/2004 of ADDL.SESSIONS COURT(FAST TRACK-III), TRIVANDRUM CC.66/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA ========================================== REVN. PETITIONER/APPELLANT/ACCUSED : PRADEEP KUMAR ,S/O.GANGADHARAN KIZHAKKEKARA VEEDU, KOAPPAMTHADATHIL WARD NO. 13, MANGALAPURAM, VATTOM DESOM, MELTHONNAKKAL VILLAGE, ATTINGAL. BY ADV. SRI.G.SUDHEER RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1094 of 2009 B --------------------------------------- Dated this 29th day of June 2009 ORDER This revision is in challenge of judgment of Learned Additional Sessions Judge (Fast Track-III), Thiruvananthapuram in Criminal Appeal No. 428 of 2004 confirming conviction and sentence of petitioner for offences punishable under Secs. 279 and 304(A) of Penal Code (for short, “the Code”). Petitioner faced trial in the court of learned Judicial First Class Magistrate-1, Neyyattinkara in C.C.No.66 of 1998. Charge is that on 14-03-1997 at 6.55a.m petitioner drove a KSRTC bus along the public road in a rash and negligent manner so as to endanger human life and at the place of accident, junction negotiated the curve towards south at excessive speed he lost control of the bus and it hit a cyclist which resulted in his death. Prosecution examined PWs.1 to 12 and marked as Exts.P1 to P10. Ext.D1 is the portion in the previous statement of PW4 marked for the defence. Learned magistrate found that petitioner committed the offences as alleged and sentenced him to undergo rigorous imprisonment for three months. Crl.R.P.No.1094 of 2009 2 Appellate court confirmed conviction and sentence. It is argued by learned counsel for petitioner that conviction of petitioner is not sustainable. According to learned counsel evidence of PWs 3 and 4 cannot be believed as they are chance witnesses. It is also contended that the accident is referable to the break failure of the vehicle. 2. It is not disputed that petitioner was driving the offending vehicle at the relevant time. There is also no dispute that the cyclist sustained injuries in the incident and succumbed to it. 3. PWs.3 and 4 are witnesses to the accident. They stated that they were waiting for bus at the junction on the relevant day and time. They found the bus driven by the petitioner coming from east to west at excessive speed, negotiating the curve towards south at the same speed and hitting the deceased against the compound wall on the western side. They attributed rashness and negligence of petitioner as the cause of accident. PW10, Motor Vehicle Inspector inspected the offending bus at the premises of city traffic police on 15-03-1997 at 4.30 p.m and issued Ext.P6 stating that break system was found efficient and that it was not mechanical defect of the vehicle that caused the accident. 4. So far as evidence of PWs.3 and 4 are concerned the Crl.R.P.No.1094 of 2009 3 contention is that they are chance witnesses and had no occasions to be place of occurrence at the relevant time. It is not disputed by PWs.3 and 4 also that they are residing about one and half kms away from the place of occurrence but, they claimed that they were waiting for Bus at the place of occurrence (the junction) to go for work. Though it was suggested that PWs.3 and 4 that they are related to the deceased, they denied that. There is no evidence to show that PWs.3 and 4 are related to the deceased. When the accident occurs at a junction witnesses to that incident will be the passers by. Accident occurred at 6.55 a.m. Nothing is brought out in the evidence PWs.3 and 4 to disbelieve their version. It is contended by learned counsel that while PWs.3 and 4 stated in the evidence that the bus hit the deceased against the compound wall, what they told the police officer in the course of investigation is that the bus hit the deceased, he fell down and sustained injury. Ext.P2, mahazar for scene of occurrence shows that the compound wall on the western side had collapsed. That gives support to the evidence of PWs.3 and 4 that the bus hit the compound wall as well. I do not find reason to disbelieve the evidence of PWs.3 and 4. Ext.P3, mahazar for scene of occurrence prepared by the Crl.R.P.No.1094 of 2009 4 Investigating Officer and Ext.P5, sketch prepared by PW9, Village Officer show that accident occurred at the junction. The width of the road at the place of accident is 4.25metres with margin on either side. Accident spot which is not successfully disputed is 1.10ms west of the western tar end, ie., well within the western road margin. Admittedly bus driven by petitioner was coming from east to west and the accident occurred when the bus was negotiating the curve towards south. It is seen from Ext.P2 and evidence of PWs.3 and 4 that the bus has gone to the extreme western side which is its wrong side. There is no case or evidence that at the time of accident there was any other vehicle on the road so that, offending vehicle had to go to the extreme wrong side. 5. I referred to Ext.P6 and evidence of PW.10 that break system of the vehicle was efficient and that accident was not due to any mechanical defect. Argument of learned counsel is that as admitted by PW.10 also, he inspected the vehicle at the premises of city traffic police (which according to learned counsel is 9 km away from the place of occurrence) on 15-03-1997 at about 4.30 p.m. Learned counsel would say that the vehicle was nearing the expiry period of its fitness and that somebody from the KSRTC could have repaired the damaged Crl.R.P.No.1094 of 2009 5 break system immediately after the accident and before the vehicle was taken to the premises of the city traffic police for inspection. Learned counsel contended that until the bus was removed from the scene of occurrence it was not guarded by the police. I am afraid I am unable to accept the contention. There is no evidence to show that anybody had meddled with the vehicle immediately after the accident and before it was removed to the premises of city traffic police.. Ext.P10 shows that even at the time of inspection break system was efficient. That evidence of PW.10 is not discredited. Possibility of accident being due to any break failure is ruled out by Ext.P6 and the evidence of PW10. Evidence on record is sufficient to conclude as rightly held by the courts below that the accident was due to the rashness and negligence of petitioner. Hence, his conviction does not require any interference. 6. Petitioner was sentenced to undergo rigorous imprisonment for three months' for the offence under Secs. 279 of the Code and rigorous imprisonment for one year under Sec.304(A) of the Code. Learned counsel prayed for leniency in the matter of sentence. Learned counsel submits that the information given to him is that petitioner has retired from service. It is not shown that petitioner is involved in any Crl.R.P.No.1094 of 2009 6 other similar case. In these circumstances I am persuaded to think that simple imprisonment for a period of three months' under Sec.279 of the Code and imprisonment of the same description for a period of six months' under Sec.304(A) Code is sufficient. The sentence awarded to the petitioner is modified accordingly. Resultantly this revision is allowed in part to the extent that sentence awarded to the petitioner under Sec.279 of the Code is modified as simple imprisonment for three months' and under Sec. 304(A) of the Code, as simple imprisonment for six months' to run concurrently. Needless to say that period of detention if already undergone will be set off against the substantive sentence. THOMAS P JOSEPH, JUDGE Sbna/