IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Crl.Rev.Pet.No. 1311 of 2003() ------------------------------ ST.970/1995 of Judicial First Class Magistrate, PONNANI CRA.84/1999 of ADDL.SESSIONS COURT, PONNANI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.R.GEORGE, S/O. RAFEL @ RAPPAYI, CHIRAYATHU VEEDU, KOTTAPPADI, KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1311 OF 2003 --------------------------------------------- Dated 15th July, 2010 O R D E R Petitioner, the driver of bus KL-BC/666 on 21/2/1995 which hit on PW1, a rider of A bicycle and caused hurt was convicted and sentenced for the offence under Sections 279 and 337 of Indian Penal Code by Judicial First Class Magistrate, Ponnani in S.T.970/1995. Though petitioner challenged the conviction ans sentence before Sessions court, Manjeri in Crl.A.84/1999, learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for CRRP 1311/03 2 the revision petitioner argued that there is no evidence to prove the identity of the petitioner as the driver of the bus, as PW1 the injured did not identify the accused and though PW2 a hostile witness identified petitioner, his evidence should not have relied on. Learned counsel also argued that incident could not have occurred as spoken to by Pws.1 and 2 and as is clear from the evidence of PW1, his house is on the southern side of the road and to reach his house, he has to go, along the road which runs towards south from that road and for that PW1 has to cross the road and thereafter proceed along that road which proceeds towards the south and the incident occurred only due to his negligence, when he suddenly crossed the road and therefore, conviction of the petitioner is not sustainable. 3. Learned Public Prosecutor submitted CRRP 1311/03 3 that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction. 4. Ext.P2 scene mahazar shows that road is lying east to west and tarred road is having a width of 6.30 meters. In addition there is a northern road margin, having a width of 10 meter. The bus was admittedly proceeding from west to east. The bus hit on the bicycle, on almost on the southern road margin. Though learned counsel argued that there is no evidence to prove the identity of the petitioner as the driver, PW2 though turned hostile, identified petitioner as the driver of the bus. Argument of the learned counsel is that as per the evidence of PW2, he was filling petrol in a vehicle and only on hearing the sound of applying sudden brake, he looked there and only after completing the work of filling CRRP 1311/03 4 the petrol, he proceeded to the spot and he found there about 15 persons gathered and in such circumstances, identification made by PW2 should not have been relied on. Evidence of PW2 is that though he was filling petrol, when he heard the sound of application of sudden brake, he looked there and found the driver. He also deposed that immediately after completing the work, he went to the spot where the bus was stopped and about 15 persons were gathered there. PW2 was not cross examined whether petitioner was one among the 15 persons. In such circumstances, it cannot be argued that petitioner was not in the driving seat and therefore, PW2 can not identify the petitioner as the driver. The very fact that he turned hostile establishes that PW2 is not supporting the prosecution case. In such circumstances, I find no reason to differ with the findings of CRRP 1311/03 5 the courts below that evidence of PW2 establishes the identity of the petitioner as driver of the bus. 5. Though learned counsel appearing for the petitioner argued that the incident occurred only due to the negligence of PW1, as he crossed the road all of a sudden, I cannot agree with that argument also. As stated earlier, tarred road is having a width of 6.30 meters. Even if defence case is accepted and it is taken that PW1 suddenly crossed the road, as the bus hit PW1 on almost at the southern road margin, it is clear that before the bus hit on PW1, he should have crossed a minimum of 5 meters from the northern road tarred end and if at all less than one meter alone remained. If that be the case, if bus was not being driven rashly and negligently and in over speed the incident would not have occurred, by the time CRRP 1311/03 6 PW1 covered the five meter width, the bus could have covered the scene. Therefore, when PW1 had already covered 5 meters, negligence is only on the petitioner. On going through the entire evidence, findings of the courts below that incident occurred only due to the rash and negligent driving of the petitioner so as to endanger human life is perfectly legal and and proper. 6. Fact that PW1 sustained hurt as proved by the evidence of PW3, the doctor and Ext.P1 wound certificate also is not disputed. In such circumstances, conviction of the petitioner for the offence under Sections 279 and 337 of Indian Penal Code is perfectly legal. 7. Then the question is regarding the sentence. Learned counsel appearing for the petitioner submitted that the incident was in CRRP 1311/03 7 December 1995 and as substantive sentence is not mandatory, in the interest of justice sentence may be modified. Considering the fact that the incident was in 1995 and only hurt was caused to PW1, interest of justice will be met, if sentence for the offence under Section 279 of Indian Penal Code is modified to the maximum fine provided under the Code and sentence for the offence under Section 337 of Indian Penal Code is modified to imprisonment till rising of court and compensation of Rs.8,000/- to PW1 the injured. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 279 and 337 of Indian Penal Code is confirmed. Sentence is modified. In supersession of the sentence awarded by the learned Magistrate and confirmed by the Sessions Judge, petitioner is sentenced to fine CRRP 1311/03 8 of Rs.1,000/- and in default simple imprisonment for one month for the offence under Section 279 of Indian Penal Code. Petitioner is sentenced to imprisonment till rising of the court and compensation of Rs.8,000/- (Rupees Eight Thousand only) to PW1, the injured and in default simple imprisonment for two months. Petitioner is directed to appear before the Judicial First Class Magistrate, Ponnani on 30/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, 23JUDGE. uj.