IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Crl.Rev.Pet.No. 3233 of 2009 ----------------------------------------------- [ CRA.48/2009 of VI ADDL. DISTRICT & SESSIONS COURT, ERNAKULAM CC.1885/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM] .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------- MARTIN, S/O.SEBASTIAN, ALUNKAL HOUSE, MANASSERY CHERIYAKADAVU, PALLURUTHY. BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT/RESPONDENT/ COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA (REP.BY THE SUB INSPECTOR OF POLICE, CITY TRAFFIC POLICE STATION, KOCHI), REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK P.S. GOPINATHAN, J. ------------------------------ CRL.R.P.NO. 3233 OF 2009 -------------------------------------- DATED THIS THE 16TH DAY OF OCTOBER 2009 O R D E R The revision petitioner is the accused in C.C No.1885 of 2002 on the file of the Judicial Magistrate of First Class-II, Ernakulam. In Crime No.2006 of 2002, the Sub Inspector of Police, Kochi City Traffic Police Station filed a chargesheet against the revision petitioner alleging offence u/s. 279, 337 and 304(A) of I.P.C with an allegation that on 3-7-2002 at 9.30 a.m. the revision petitioner drove a stage carriage bus bearing registration No. KL-8/F-7891 from South to north along Ernakulm-Chittoor road in a rash and negligent manner so as to endanger human life and on the north of the of Vaduthala railway gate junction it hit against a Kinetic Honda Scooter bearing registration No.KL-7/H- 4257 ridden by late Saseendran with his wife on the pillion and as a result Saseendran sustained serious injuries to which he succumbed. It was alleged that due to the hit, an angle iron of the CRL.R.P.NO. 3233 OF 2009 2 bus fitted at the right side hit at the chest of Saseendran and he sustained injury which caused the death. The wife of the deceased Saseendran was examined as PW1. She had also sustained injuries. The law was put in motion by PW2, who gave Ext.P1 First Information statement. PW5, Head constable recorded Ext.P1 given by PW2 and registered a case. The investigation was taken over by PW10, the Inspector of Police. He after completing the investigation laid the chargesheet before the trial court. 2. The learned Magistrate took cognizance and issued process. The revision petitioner appeared before the learned Magistrate in response to the summons. The particulars of the charge was read over and explained after furnishing the copy of the chargesheet and connected records. He pleaded not guilty. Hence he was sent for trial. On the side of the prosecution PWs 1 to 11 were examined and Exts.P1 to P8 and Mo1 were marked. After closing the evidence for prosecution the revision petitioner was questioned u/s.313 of the Cr.PC. He denied all the CRL.R.P.NO. 3233 OF 2009 3 incriminating evidence. No defence evidence was adduced. The learned Magistrate on appraisal of the evidence arrived a finding that the revision petitioner is guilty for offence u/s. 279, 337 and 304(A) of I.P.C. Accordingly he was convicted and sentenced to simple imprisonment for three months and a fine of Rs. 1,000/- with a default sentence of simple imprisonment for one month for offence u/s. 279 of the I.P.C. For offence u/s. 337 he was sentenced to simple imprisonment for one month and for offence u/s.304 A IPC he was sentenced to simple imprisonment for two years and a fine of Rs. 5,000/- with a default sentence of simple imprisonment for a further period of one month. The substantive sentence were ordered to run concurrently. 3. Feeling aggrieved by the above conviction and sentence the revision petitioner took up the matter in appeal. The 4th Additional Sessions Judge, Ernakulam by judgment dated 29-7-2009 in Crl. Appeal No. 48 of 2009 dismissed the appeal and confirmed the conviction and sentence. CRL.R.P.NO. 3233 OF 2009 4 4. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. I heard the learned counsel for the revision petitioner as well as the public prosecutor. The learned counsel for the revision petitioner took me through the evidence on record. 5. PW1, the wife of the deceased who was the pillion rider deposed that when the deceased was ridding the above vehicle along with PW1 on the pillion at 9.30 a.m. on 3-7-2002, the bus referred above driven by the revision petitioner hit against the scooter and thereby the angle iron of the bus fitted at the right side hit on the scooter and pierced at the chest of the deceased as a result of which he died. Negligence was attributed against the revision petitioner. PW3 and 4 who are neighbouring shop owners had also given evidence supporting the evidence adduced by the PW1. They had also attributed negligence against the revision petitioner. The identity of the revision petitioner as the driver was also spoken by the PW3 and 4. The courts below had appreciated CRL.R.P.NO. 3233 OF 2009 5 the evidence of PW1, 3 and 4 and arrived a conclusion that the revision petitioner was the driver of the bus at the time of the accident. In fact the identity of the revision petitioner as the driver of the bus was not disputed by the learned counsel for the revision petitioner. It was also concurrently found that their evidence establishes the guilt. I find no reason to disbelieve them. Courts below had rightly believed them. 6. Ext.P2 is the scene mahazar wherein PW6 is the attester. A reading of Ext.P6 scene mahazar would show that at that spot, the tar road was having a width of 7 meters and the spot of occurrence is shown as 60 cm towards west from the eastern tar end. The sport of occurrence would indicate that the revision petitioner who was driving the bus from south to north hit against the scooter which was ridden in the opposite direction at the eastern extremity. Spot of occurrence would show that the deceased had not contributed any negligence. The revision petitioner had driven to the wrong side, that too to the extreme end CRL.R.P.NO. 3233 OF 2009 6 and hit down the scooter. Spot of occurrence also supports the evidence of PW1, 3 and 4. 7. According to the learned counsel for the revision petitioner the right side rear view mirror of the scooter which has a height of 112 cms from the floor, hit on the angle iron fitted on the bus which was also at the same height and thus the angle iron fitted on the body of the bus might have hit the chest of the deceased. The learned counsel for the petitioner also argued that the accident occurred because of the negligent riding of the deceased and it was the scooter that hit on the bus. In a case where two vehicles move in opposite direction and hit against, it cannot be ascertained as to which vehicle hit the other. Then what is possible is to examine whether the vehicles were keeping their side. It is not disputed that if the revision petitioner was keeping his side, he would not have driven to the eastern side. He violated the rule to keep left . If the road rules are given regard, the revision petitioner would not have driven to the wrong side and hit CRL.R.P.NO. 3233 OF 2009 7 against the deceased who was riding through his side. The revision petitioner also argued that the evidence of PW1 would show that after hitting, the scooter as well as the riders were thrown to a little distance and if the spot of occurrence is shown at the place where the scooter and riders fell down, the spot where the vehicles hit as reported in Ext.P2 is not correct. Having gone through the evidence of PW6, the attester of Ext.P2 and PW10, who prepared the scene mahazer, I find that in fact the accident occurred at the eastern side of the road though there may be chance of minor variation. The courts below had correctly believed the spot of occurrence. Even if it is assumed that the scooter might have been thrown to a little distance there is no material to come to a conclusion that bus was at its proper side, that is on the western side. The learned counsel also pointed out that PW1 had stated that a vehicle was kept parked infront of the scooter ridden by the deceased. According to the learned counsel, since there is no case that the bus hit on the parking vehicle, it is an indication that the CRL.R.P.NO. 3233 OF 2009 8 accident might not be as alleged by the prosecution, but it might be due to the scooter hitting on the bus. That argument is also devoid of any merit. There is nothing on record to show that the vehicle which was parked just ahead of the spot was in the tarred road so that bus might hit on that vehicle before it hit on the scooter ridden by the deceased. In the above circumstances I find that the courts below had correctly determined the spot of occurrence at the eastern side of the road. The spot of occurrence would clearly indicate the negligence of the revision petitioner. 8. The death of the rider was spoken by PW1. Ext.P5 inquest report as well as Ext.P9 Post mortem report coupled with the evidence of PW11 would show that the rider of the scooter died because of the angle iron of the bus which was marked as MO1 pierced at his chest. The cause of death is not at all disputed. So the courts below had correctly arrived a conclusion that the death of Saseendran is due to the negligent driving of the bus by the revision petitioner. There is little material to come to a conclusion CRL.R.P.NO. 3233 OF 2009 9 that the deceased had contributed any negligence to cause the accident. 9. Ext.P2 does not disclose any tyre mark in the spot. It would indicate that the revision petitioner had not even applied the break to avoid the hit on the scooter. If he had been cautious he ought to have driven the bus along the left side of the road ie. Western side of the road. Even if it is assumed that the scooter was driven a little towards the western half of the road, the revision petitioner could have avoided the accident by applying the break. But there is nothing to show that the revision petitioner applied the break. All these materials reveals the negligence on the part of the revision petitioner. 10. Offence u/s.337 IPC was alleged against the revision petitioner with a plea that PW1 also sustained injury. But regarding the injury sustained to the PW1, there is no evidence. So the offence u/s.337 is not established. But, offence u/s. 279 and 304A IPC are established. I find no error committed by the courts below CRL.R.P.NO. 3233 OF 2009 10 in arriving at a conclusion of guilty for offence u/s. 279 and 304A IPC. Whereas the revision petitioner is entitled to an order of acquittal for offence u/s.337 of IPC. 11. According to the learned counsel for the revision petitioner the sentence awarded is very harsh and that the lower court had given maximum sentence. Though the sentence awarded by the trial court and confirmed by the appellate court cannot be termed as harsh, taking note of the entire facts and circumstances I find that imposition of rigorous imprisonment for 18 months and a fine of Rs. 5,000/- u/s.304A would meet the ends of justice. No separate sentence u/s.279 is warranted. In the result the revision petition is allowed in part. The conviction for offence u/s.279 and 304(A) is confirmed. The conviction for offence u/s.337 IPC is set aside and for that offence, the revision petitioner is acquitted. For offence u/s. 304A IPC the revision petitioner shall undergo rigorous imprisonment for a period of 18 months and a fine of Rs. 5,000/-. In default of CRL.R.P.NO. 3233 OF 2009 11 payment of fine the revision petitioner shall undergo simple imprisonment for a further period of three months. If the fine amount is realized, the same shall be paid to PW1 as compensation. While setting aside the sentence awarded for offence u/s.279 IPC, there would be no separate sentence for offence u/s 279 IPC. P.S. GOPINATHAN JUDGE pkk