IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Crl.Rev.Pet.No. 1204 of 2002() --------------------------------------------- CRA.NO.27/1997 OF SESSIONS COURT, MANJERI CC.NO.89/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI. ........ REVISION PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------------------- CHANDRAN, S/O. CHOYUNNI, ULLANAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/STATE: --------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. 2. THE SUB-INSPECTOR OF POLICE, THANHIPALAM POLICE STATION, MALAPPURAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR SRI. I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.R.P.No.1204 of 2002 ---------------------------------------------------- Dated this the 1st day of August, 2011 Order This revision is filed by the accused challenging the concurrent finding of guilt entered against the accused under Sections 279, 337 and 338 of the I.P.C. Though there was a charge under Section 337 I.P.C., in view of the fact that the accused was convicted under Section 338, separate punishment was not awarded for the offence under Section 337. For the offence under Section 279, he was sentenced to undergo S.I. for three months and S.I. for three months and a fine of Rs.1000/- in default to undergo S.I. for one month for the offence under Section 338 I.P.C. 2. The incident took place on 6.11.1994 at 12.30 PM. The accused was alleged to be the driver of the bus KRM-5418. The bus at that time was proceeding along Chelari-Kozhikode public road. The allegation is that due to the rash or negligent driving of the bus, it went off the road and hit the compound wall and in that accident P.Ws.1 to 3 sustained injuries of which some of the injuries were grievous in nature. Crl.R.P.1204/02 2 2. Before the learned Magistrate, P.Ws.1 to 9 were examined and Exts.P1 to P7 were marked. The learned Magistrate after analysing the evidence accepted the evidence of P.W.3 to hold that it was the accused who drove the bus at the relevant time. It was also found that the rash and negligent driving of the bus was also discerned from the fact that the bus went off the road margin and then hit the compound wall. 3. The defence contended that it was not the accused who drove the bus at the relevant time. It was further contended that there was a pit on the road and when the bus had to take to the extreme side of the road to avoid the bus hitting another vehicle, the tyre fell into the pit and thus the driver lost control of the bus. That plea remained in the realm of suggestion alone. Had the bus been driving at normal speed, the driver could have had control over the vehicle and could have avoided the bus going off the road. The road at that place was straight having direct vision of 100 metres ahead. There was no justification for the person at the wheels to allow the vehicle to go off the road. No circumstance could also been shown by the accused as to how the vehicle happened to go off the road. Admittedly, the vehicle Crl.R.P.1204/02 3 was not having any mechanical defect. As such both the courts have rightly found that the rashness and negligence attributed against the driver of the vehicle stood proved beyond reasonable doubt. The finding to that effect is confirmed. 4. The other contention which was vehemently pressed into service by the learned counsel for the accused is that there is no legal evidence to hold that it was not the accused who drove the bus at that time. The evidence given by P.W.3 was assailed by the defence contending that it was not possible for her to identify the person who drove the vehicle. It was also contended that there was no material to support the evidence given by P.W.3. But the evidence given by P.W.3 infuses confidence in the mind of the court in view of the fact that P.W.3 had acquaintance with the accused as she had occasion to travel earlier also in the very same bus driven by the accused. It was stated by P.W.3 that she was sitting in the seat just behind the seat of the driver. Though other witnesses did not support the prosecution to prove the identity of the driver, the two courts below found no infirmity in the evidence given by P.W.3. In such circumstances, there is no reason to differ from the view taken by the courts below. Hence, Crl.R.P.1204/02 4 the finding that it was the appellant who drove the bus at the relevant time is also confirmed. 5. Admittedly, one of the injured suffered grievous hurt and another passenger sustained simple injuries. Therefore, it can be very well found that the conviction of the petitioner for the offence under Section 337 and 338 IPC is also correct. 6. Learned counsel for the revision petitioner argues that leniency may be shown to the petitioner and that sentence may be converted to fine. The petitioner was convicted for the offence under Section 338 IPC also. 7. Learned counsel for the revision petitioner would submit that the accused is now aged about 60 years and that he is suffering from so many ailments and that the incident had taken place in the year 1995 and there was no other case against the accused. The learned counsel further submits that sending the accused to jail at this stage would cause undue hardship and it may be avoided. Considering the fact that incident took more than 15 years back and the accused is aged about 60 years now, the sentence is modified altering to a fine of Rs.1,000/- each for the offence under Section 279 and 388 IPC and Rs.500 for the Crl.R.P.1204/02 5 offence under Section 337 IPC. In default of payment of fine the petitioner/accused shall undergo simple imprisonment for two months each for offence under Section 279 and 388 IPC and simple imprisonment for one month for the offence under Section 337 IPC. 8. The accused is granted one months time to pay fine amount. The Criminal R.P. is disposed of as above. N.K.BALAKRISHNAN, JUDGE. srd Crl.R.P.1204/02 6 Crl.R.P.1204/02 7