IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 1707 of 2009 ------------------------------ AGAINST THE ORDER DATED 30/10/2008 IN C.C.249/2003 IN CRA.164/2007 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA .................... REVN. PETITIONER/PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------------------- DIVAKARAN S/O. NARAYANAN, PALAMUTTATHU VADAKKETHIL VEEDU, PALAMEL P/W-XII, PANAYIL MURI, PALAMEL VILLAGE. BY ADV. SRI.JOHN BRITTO RESPONDENT/RESPONDENT/COMPLAINANT ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- THOMAS.P.JOSEPH, J - - - - - - - - - - - - - - - - - - - - - Crl. R.P.No.1707 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2009 J U D G M E N T Petitioner, faced with conviction and sentence for offences punishable under sections 279 and 304(A) of the Indian Penal Code (for short, 'the IPC') has come up in revision challenging concurrent findings entered against him. According to the prosecution petitioner drove the offending bus along Mannar-Mavelikara public road on 6.6.2003 at about 1.30 p.m. in a rash and negligent manner so as to endanger human life, caused that bus hit a 13 year old school boy resulting injuries to him and his succumbing to the injuries. Courts below found that accident occurred due to the rashness and negligence of the petitioner. It is contended that there is no evidence to show that petitioner was driving the offending bus at the relevant time and that at any rate, rashness or negligence of petitioner is not proved to be the cause of accident. Crl. R.P.No.1707 of 2009 2 2. That the victim suffered injuries in the accident and succumbed to it are not challenged before me and proved by Ext.P9, the inquest report, evidence of PWs 9 and 12, medical officers who examined the deceased and conducted postmortem examination and issued Exts.P6 and P8. 3. Evidence of PW10 along with Ext.P7 show that the accident was not due to any mechanical defect of the vehicle. PW.10 has certified after inspection of the vehicle that it was in good running condition and that its break system was efficient. 4. PWs 4, 5 and 6 are witnesses to the accident. Of them, PW4 did not support the prosecution but stated that while he was standing at the junction, he found the deceased lying on the road with injuries. He does not know how the deceased sustained injuries. PWs 5 and 6 supported the prosecution except as to identity of the driver of the offending bus. They stated that deceased was going Crl. R.P.No.1707 of 2009 3 to the school along western side of the road from south to north. The bus came from opposite side at excessive speed in a rash and negligent manner and hit the deceased. They however, did not or could not identify the driver of the offending bus. PW7 is an attestor in Ext.P10, mahazar for scene of occurrence prepared by the investigating officer. In Ext.P10, lie of the road at the place of accident is shown as north - south. The tar portion has width of 7 meters with road margin on either sides. Accident spot is identified as 1.20 meters east of the western tar end. It is also stated in Ext.P10 that the road is straight towards north up to 100 meters and towards south, up to 60 meters from the spot of accident. 5. PW8 is owner of the bus. To him the investigating officer issued a notice copy of which is Ext.P3. PW8 was asked to disclose name and address of person who was driving the offending bus at the relevant time. Ext.P4 is the reply given by PW8 telling that petitioner was driving the Crl. R.P.No.1707 of 2009 4 bus at the relevant time. In his evidence PW8 stated that in answer to the notice served he gave Ext.P4, reply supplying information as to the person who was driving the offending bus at the relevant time. But in cross examination he stated that though he is the owner of the bus, its day to day affairs were being attended by his father and another employee and that information contained in Ext.P4 as to the person who was driving the bus at the relevant time came to him from his father and that employee. Courts below referred to Ext.P4 and the statement of petitioner when questioned under section 313 of the Code of Criminal Procedure (for short, 'the Code') to hold that petitioner was driving the bus at the relevant time. When questioned under section 313 of the Code petitioner stated that (at the relevant time) he was coming from Thiruvalla. Conductor gave the bell. He took the bus forward. The boy (deceased) crossed the road from west to east. Learned counsel submits that statement under section 313 of the Code is not evidence Crl. R.P.No.1707 of 2009 5 and could not have been taken into consideration to convict the petitioner. 6. No doubt, statement given by the petitioner when questioned under section 313 of the Code cannot be taken as 'evidence'. But statement of petitioner can also be looked into while appreciating evidence of witnesses for prosecution. Even when the statement is incriminating, it has been held that such statement of the accused cannot altogether be ignored. (See state of UP Vs. Lakshmi - AIR 1998 SC.1007). In this case, the statement of petitioner under section 313 of the Code that he was driving the offending bus at the relevant time cannot be taken as incriminative. Fact of driving the bus does not amount to any offence. Therefore, that statement of petitioner can be taken into consideration and used for appreciating evidence of the prosecution witness. It is true that PW8 stated in cross examination that information contained in Ext.P4 came to him from his father and employee who were Crl. R.P.No.1707 of 2009 6 managing the affairs of the bus. Question is whether statement of PW8 in Ext.P4 can be accepted and whether his explanation in cross examination that he got the information from his further or other employee is true. As owner of the bus it is not as if PW8 was unaware of the person who was driving his bus at the relevant time. Petitioner himself has admitted that he was driving the offending bus at the relevant time. Also in view of that statement of petitioner which I have adverted above, I find no reason to ignore Ext.P4. 7. It is then argued by learned counsel that at any rate contents of Ext.P4 were not put to the petitioner when questioned under section 313 of the Code. I have gone through the statement of petitioner. I find that the attention of petitioner was brought to Exts.P3 and P4 and petitioner claimed that the same are incorrect. It is not as if Exts.P3 and P4 were not put to the petitioner. May be, the more appreciable way would have been to bring the Crl. R.P.No.1707 of 2009 7 contents of Exts.P3 and P4 also to the notice of petitioner. But, I am unable to think that there is any non compliance with the requirements of section 313 of the Code. Bringing the documents to the mother of petitioner is sufficient compliance (See State of Kerala V. Venga Gopalan - 1994(2) KLJ 507). Question is whether on account of the contents of Exts.P3 and P4 being not put to petitioner, he has been prejudiced. It is not disputed that copies of Exts.P3 and P4 were given to the petitioner along with other records of the case even before trial started. Petitioner has stated that Exts.P3 and P4 are not correct. Further he also admitted that he was driving the offending bus at the relevant time. In the circumstances, it is idle to contend that since the contents of Exts.P3 and P4 were not put to the petitioner, his defence is prejudiced. I find no reason to interfere with the finding of the courts below that at the relevant time, petitioner was driving the offending bus. Crl. R.P.No.1707 of 2009 8 8. Then the next question is whether the prosecution has established that accident was due to the rashness or negligence of petitioner. 'Rashness' involves recklessness. It means a hasty, impetuous act without due consideration or regard for consequence. 'Negligence' is that conduct which a reasonable and prudent man would avoid on the ground that it involved risk of life of himself and/or others. Evidence of PWs 5 and 6 show that the bus driven by petitioner came at excessive speed. True, they have not stated their notion about high speed or, the speed in kilometer per hour. Assuming so, Ext.P10 shows that accident occurred on the wrong side of petitioner. It is not disputed and, evidence shows that the bus driven by petitioner came from north to south while the accident occurred towards the western side of the tar portion (1.20 meters east of western tar end). The tar portion is having width of 7 meters. In other words bus driven by petitioner has gone to its wrong side. Petitioner has no explanation as Crl. R.P.No.1707 of 2009 9 to how and under what circumstance the bus went to its wrong side. Learned counsel pointed out that according to PWs.5 and 6 the bus driven by petitioner was overtaking another bus. Assuming so, it was the look out of petitioner to ensure that in the process of overtaking another vehicle, it did not hit pedestrians. It is true that though there was sufficient road margin on the western side accident occurred in the tar portion 1.20 meters east of the western tar end which indicated that deceased was walking along that portion of the road. But contributory negligence, assuming there was, is no defence in a prosecution for rash and/or negligent driving. The road is sufficiently wide and straight at the accident spot so that, had petitioner been cautious, accident could have been avoided. Evidence shows that unmindful of the consequence petitioner has taken his vehicle to the extreme wrong side which resulted in the accident. That indicated rashness and negligence on the part of petitioner. On the facts and evidence on record, Crl. R.P.No.1707 of 2009 10 I do not find reason to interfere with the finding of the courts below. Conviction requires no interference. 9. It is contended by learned counsel that sentence awarded excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months each under sections 279 and 304(A) of the Code. In addition to that, his licence was suspended for six months. Considering the nature of offence and that a 13 year old boy lost his life due to the rashness or negligence of the petitioner, I am not inclined to think that sentence awarded is excessive calling for interference in revision. Revision fails. It is dismissed. THOMAS.P.JOSEPH, JUDGE. app/-