IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 Crl.Rev.Pet.No. 1061 of 2003 ---------------------------------------- CRL.A.NO.249/1997 OF ADDL. SESSIONS COURT (ADHOC-I), THALASSERY, CC.NO.666/1993 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- K.RAVINDRAN, S/O. GOPALAN, AGED 45, NO OCCUPATION, KEEZHALOOR AMSOM, EDAYANNOOR DESOM, THALASSERY. BY ADV. SRI.V.RAMKUMAR NAMBIAR. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Crl.R.P.No.1061 of 2003 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 05th day of April, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ O R D E R At 9.30 a.m. on 11.2.1993, at Elayavoor Amsom, Mundagad desom, near Tar road bus stop, along Melechovva-Mattannur public road, a bus bearing registration No. KRE/2714 hit against a motor cycle bearing registration No. KL7B/2842 ridden by one Ashraf, who was examined as PW2 with late Rafeeque, on the pillion. As a result, PW2 and the pillion rider sustained severe injuries. Both of them were rushed to the hospital at Koyili. Rafeeque succumbed to his injuries. PW2 survived. At1.10 pm; PW1, a passenger in the bus went to Kannur Town police station and gave Ext.P1 first information statement before PW13, the then Additional Sub-inspector of Police, Kannur Town Police Station alleging that the accident occurred because of the rash and negligent driving of the bus by the revision petitioner. After recording Ext.P1 statement, PW13 W.P(C) No. 1061 of 2003 2 registered a case as Crime No. 59/93 for offence under Sections 279, 337 and 304 A IPC, by Ext.P1(a) First Information Report. PW16 the Circle Inspector conducted the investigation. PW16 filed Ext.P12 report to incorporate Section 338 IPC also. It appears that, before filing the final report PW16 was transferred. His successor completed the investigation and filed a final report before the Judicial Magistrate First Class-I, Kannur, alleging offences under Sections 279,337, 338 and 304A IPC. The learned Magistrate took cognizance and issued process, responding to which the revision petitioner entered appearance. When the particulars of the offences were read over, the revision petitioner pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 16 were examined and Exts.P1 to P14 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner took up a defence of total denial. However, no defence evidence was adduced. W.P(C) No. 1061 of 2003 3 2. The learned Magistrate after perusal of the evidence, arrived at a finding of guilty. Consequently the revision petitioner was convicted for offence under Section 279, 337, 338 and 304A IPC and sentenced to simple imprisonment for six months, for offence under Section 279 IPC, simple imprisonment for one year for offence under Section 338 IPC and simple imprisonment for two years for offence under Section 304A IPC. No separate sentence was awarded for offence under Section 337 IPC. Assailing the above conviction and sentence, the revision petitioner preferred Criminal Appeal 249/1997 before the Sessions Judge, Thalassery. The Additional Sessions Judge (Adhoc-I) to whom the appeal was made over, by judgment dated 15.1.2003 concurred with the finding of guilty. Accordingly, the conviction was confirmed. But the sentence was reduced to simple imprisonment for six months each for all the offences. Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision W.P(C) No. 1061 of 2003 4 petition was filed. 3. The learned counsel for the revision petitioner and the learned Government Pleader were heard. 4. The learned counsel for the revision petitioner submitted that he is not disputing the accident as well as the identity of the revision petitioner as the driver of the offending vehicle. In the revision petition also the identity is not disputed. Having gone through the judgments of the courts below, I find that the identity of the revision petitioner as the driver of the bus was proved by PWs 1 and 3, who were passengers in the bus and by the testimony of PW9, who was the conductor of the bus. Their evidence is also supported by Ext.P6 trip sheet. So, there is convincing evidence that the revision petitioner was the driver of the bus at the time of the accident. 5. PWs 1 to 4 are harmonious that the bus hit against the motor cycle. The rider as well as the pillion rider sustained injuries. The evidence of PW7, a Resident Medical W.P(C) No. 1061 of 2003 5 Officer, Koyili Hospital supported by Ext.P5 wound certificate, would show that the pillion rider had sustained multiple abrasion on the upper and lower limbs, swelling and deformity right thigh. X-ray showed fracture femur right and fracture pelvis. The patient expired at the casualty on the same day at 12.55 pm. The death of the pillion rider was further proved by Ext.P14 postmortem certificate where it is certified that death was due to multiple injuries to internal organs and bleeding. The death was also not disputed by the learned counsel for the revision petitioner. 6. The evidence of PW14, the Resident Medical Officer, District Hospital, Kannur coupled with Ext.P9 wound certificate would show that PW2 had sustained compound fracture both bones right lower leg, lacerated injury left palm 5 x 2 cms, contusion right side of scalp 4 x 3 cms, bleeding from ear and nose, fracture right femur and head injury. The evidence of PW14 supported by Ext.P9 was also not challenged in the cross examination. The evidence of PW6 W.P(C) No. 1061 of 2003 6 coupled with Ext.P4 would show that the revision petitioner had also sustained minor injuries. Thus there is convincing evidence that as a result of the accident pillion rider died and PW2 sustained grievances hurt. 7. The evidence of PW15, the Motor Vehicle Inspector, Kannur coupled with Exts.P10 and P11 would show that he examined both the vehicles and found that the break systems of both the vehicles were efficient and there was no mechanical defect. So, mechanical defect cannot be attributed as a cause of accident. 8. The only question that remains is whether the revision petitioner was either rash or negligent as found by the courts below. Ext.P2 scene Mahazar coupled with Ext.P8 plan prepared by the Village Officer would show that the road on the spot of occurrence had a width of 5.95 metres and that the accident was stated to be at tar road 95 cms towards west from the eastern tar end. Ext.P8 would also show that the road was almost in the south-north direction having a W.P(C) No. 1061 of 2003 7 small bent near the spot of occurrence. It is revealed by the evidence of PWs 1 to 4 that the bus was driven from south to north and having it gone to the eastern tar end hit down the motor cycle and ran over. Ext.P8 would further show that the bus came to halt at the road margin after hitting down an electric post. Evidence of PW 1 coupled with Ext.P1 would show that the bus was at high speed and attempting to overtake another stage carriage; and in that attempt the accident occurred. PW4 had stated in cross examination that he understood that the bus hit the motor cycle only after hitting. That answer indicates that he did not see as to how the accident happened. But, the evidence of PWs 1 to 3 would show that the bus was attempting to overtake the on going bus. PWs 1 and 3 are harmonious that the revision petitioner was driving at high speed and while attempting to overtake the ongoing bus, the motor cycle was hit down and it was due to the negligence of the revision petitioner. Referring to Ext.P2, the learned counsel for the revision W.P(C) No. 1061 of 2003 8 petitioner argued that the bus was having a width of 2.45 metres and at the spot where the width of the road was 5.95 metres, overtaking as alleged the prosecution is impossible and if the prosecution story is correct, the bus could not have gone more towards the east or else, it would have hit the on going bus. According to the counsel, since the bus did not hit on the on going bus, the version of the prosecution is to be disbelieved. I am unable to accept the argument. Even with the circumstance revealed, there is least possibility of the bus hitting behind the on going bus. What is disclosed from the evidence is that the revision petitioner was only attempting to overtake. In that attempt, the revision petitioner did not care for the two wheeler coming across. He had even omitted to note that the width of the road was only 5.95 metres. Revision petitioner was competing with the ongoing bus. Referring to the evidence of PWs 1,3 and 4, the trial court observed that the revision petitioner was driving at break- neck speed. Ext.P2 would also show that the road at the spot W.P(C) No. 1061 of 2003 9 of occurrence was downgradient. That road condition also favoured the revision petitioner to drive at high acceleration. Despite PW2 riding the motor cycle in the opposite direction, he did not care to break or slow down the bus. PW2 had no option other than to keep aside. But, the revision petitioner did not care PW2. He was hit down along with pillion rider, ran over and the bus came to halt after hitting the electric post. The revision petitioner has no good explanation as to how the bus driven by him hit on the motor cycle and came to halt after hitting the electric post erected at the side of the road. 9. In the above circumstances, I find no reason other than the rashness and negligence of the revision petitioner for causing the accident. In fact, in the absence of any explanation from the revision petitioner, even the principle of the maxim, 'res ipsa loquiter'-the thing speaks for itself, is applicable, though that principle is generally applied in civil actions. I find that the courts below had correctly appreciated W.P(C) No. 1061 of 2003 10 the evidence on record and arrived at a conclusion of guilty. There is no reason to interfere with the conviction under challenge. 10. The learned counsel for the revision petitioner argued that the revision petitioner is now aged 53 years and is the father of 3 daughters who are all students. According to the learned counsel, it is a very good reason to exempt him from substantive sentence. Having due regard to the manner in which the accident occurred and the resultant consequences and taking note of the fact that, the road accidents are increasing day by day, and that the appellate court had reduced the sentence to simple imprisonment for 6 months, I find that any further leniency would turn the sentence to flee-bite sentence, which would make the criminal justice delivery system a mockery. 11. The learned counsel for the revision petitioner also brought to my notice the decision reported in Puttaswamy v. State of Karnataka (2009 (1) KLT Case No.8 -SC) and W.P(C) No. 1061 of 2003 11 argued that, in an identical case, the Apex Court has reduced the sentence with an observation that instead of confining the appellant in prison, interest of justice will be better served, if he is made to compensate the family of the deceased on account of the loss suffered by them. It is a case in which the matter has been settled between the parties, though at a later stage, apparently after compensating the parent of the child who died and a petition under Section 320 Cr.P.C. was filed. It is in the peculiar circumstance, the apex court observed so and not for general application. Here, the position is entirely different. There is no material on record to show that the revision petitioner had in any way provided any financial or other help to the heirs of the deceased or PW2, who was also badly injured. Hence, I find no reason to interfere with the sentence awarded by the appellate court. If at all the appellate court went wrong in modifying the sentence, it is only towards leniency. The revision petition is devoid of merits. It is accordingly W.P(C) No. 1061 of 2003 12 dismissed. Revision petitioner shall surrender before the trial court forthwith. Bail granted pending revision is cancelled. Trial court shall see execution of sentence and report compliance. P.S.GOPINATHAN JUDGE nl