IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.Rev.Pet.No. 1539 OF 2007() ------------------------------ CRA.256/2005 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.705/2002 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------- VISWANADHAN, AGED 51 YEARS, S/O NARAYANAN, VISWALAYAM, WARD VII, THEKKEKARA PANCHAYAT, CHERUKUNNAM MURI, THEKKEKARA VILLAGE. BY ADV. SRI.R.PADMAKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 1539 OF 2007 ------------------------------------------ Dated this the 20th day of November, 2008 O R D E R Revision petitioner, is the driver of KSRTC bus KL- 15/3564 on 29.7.2002, the accused in C.C. 705 of 2002 on the file of Judicial First Class Magistrate, Kayamkulam. Prosecution case was that on 29.7.2002 at about 7.20 a.m. he was driving the KSRTC bus, a fast passenger bus, in a rash and negligent manner, so as to endanger human life through National Highway and when PW1 with his wife PW2 and children PWs 3 and 4 were proceeding from south to north in Tata Indica car KL-1/Q1630 and reached near Ajantha junction at Krishnapuram, due to rash and negligent driving of the revision petitioner KSRTC bus hit on the car and caused grievous hurt and hurt to PWs 1 to 4 and thereby committed the offence under section 279, 337 and 338 of Indian Penal Code. Petitioner pleaded not guilty. On the evidence of PWs 1 to 11, and Exts.P1 to P15 on the side of prosecution and Dws 1 and 2 who claims to be the passengers of the KSRTC bus at the relevant time, on the side of the defence, learned Magistrate CRRP1539/07 2 found him guilty. He was convicted and sentenced for the offence under section 279, 337 and 338 of IPC. Petitioner challenged the conviction before Sessions Court, Mavelikkara in Crl. Appeal 256 of 2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner argued that both the Courts below did not properly appreciate the evidence. It was pointed out that the National Highway at the scene of occurrence was having a width of 7.08 metres and the road was lying north-south and the Tata Indica car driven by PW1 with PWs 2 to 4 as passengers was proceeding from south to north and revision petitioner was proceeding from north to south and as per Ext.P15 scene mahazar the point of collision was 4 metres to the west of the eastern tar end and if that be so it is almost on the middle of the road. Learned counsel also argued that apart from the evidence of PWs 1 to 4 there is no evidence to prove that revision petitioner was driving the KSRTC bus CRRP1539/07 3 rashly or negligently or caused injury by negligent driving. It was pointed out that if the evidence of PWs 1 to 4 is to be believed, PW1 had seen the bus coming through the western end of the road more than 50 metres away from the spot and PW1 had taken the car to the extreme western tar end and it is at that place the bus hit on the car. It is argued that if that be the case the incident could not have taken place 4 metres to the west of the eastern tar end and that fact is sufficient enough to disbelieve the evidence of PWs 1 to 4. Learned counsel argued that there is no evidence to prove that revision petitioner was driving the bus rashly or negligently and therefore based on the interested version of PWs 1 to 4, Courts below should not have convicted the petitioner. 4. Learned Public Prosecutor submitted that both the Court appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction and sentence. 5. The fact that revision petitioner was the driver of the KSRTC bus on the date of occurrence was not disputed. Petitioner was admittedly driving KSRTC bus from north to south. Ext.P15 establishes that the tar road, at the scene of occurrence, was having a width of 7.08 metres. As the bus was CRRP1539/07 4 proceeding from north to south the proper side of the revision petitioner was the eastern portion of road. As the Tata Indica car driven by PW1 was proceeding from south to north, its proper side was the western portion of road. The evidence of PW1 is that he was driving the car slowly with care and caution and before the bus hit on the car he had seen the bus 50 or 60 metres away from the car and it was coming through the extreme western portion of the road. If we are to believe PW1 finding that the bus was proceeding dangerously through the wrong side, PW1 took the car towards the western end and it is at that place the bus hit on the car. If that version of PW1 is true, the scene of occurrence and the exact spot where the bus hit on the car could only be either the western extremity of the tar road or somewhere on the western portion of the tar road. Instead it is the very prosecution case that the bus hit on the Tata Indica car 4 metres to the west of the eastern tar end. If the KSRTC bus was being driven rashly and negligently, and seeing it PW1 had stopped the car, it could have hit the car only on the western end and not almost on the middle of the road. If the bus had hit the car on the middle of the road, it could only be, if case of PW1 that he had stopped the car is accepted, due CRRP1539/07 5 to the reason that PW1 stopped the car on the middle of the road. If we are to believe that he stopped the car as evidence of PWs 3 and 4 also corroborates the evidence of PW1 that they had seen the bus coming from opposite direction from a distance of 50 or 60 metres and PW1 had taken the car to the western portion of the road, and the incident could not have been due to the negligent driving of the KSRTC bus. From the fact that the bus had hit the car on the middle of the road, evidence of PWs 1 to 4 cannot be believed. There is absolutely no other evidence to prove that revision petitioner was driving the bus in a rash and negligent manner so as to endanger human life. For the reason that the petitioner was driving the bus and other vehicle was only a Tata Indica car and it was PWs 1 to 4 who sustained hurt and grievous hurt, it cannot be presumed that the incident occurred because of the rash and negligent driving of bus by the revision petitioner. There should be evidence to prove the proximate cause for the incident was the rash and negligent driving of the bus by revision petitioner which alone can sustain the conviction. On going through the entire evidence it is not possible to hold that the incident occurred because of the rash and negligent driving of KSRTC bus by the revision petitioner. CRRP1539/07 6 As stated earlier if the version of PWs 1 to 4 is true, the incident could not have taken place in the middle of the road and therefore based on the evidence of PWs 1 to 4 it is not possible to hold that it was the revision petitioner who had driven the bus rashly and negligently so as to endanger human life and by such driving caused hurt and grievous hurt to PWs 1 to 4. By Ext.P13 report of PW10 the AMVI it is not possible to hold that the incident occurred because of the rash and negligent driving of the bus. If, instead of the bus, the car was driven rashly and negligently and hit on the bus, the same damages would have caused. In such circumstances, conviction of the petitioner for the offence under sections 279, 337 and 338 of Indian Penal Code is illegal. Revision is allowed. Conviction is set aside. Petitioner is found not guilty of the offences under section 279, 337 and 338 of Indian Penal Code. He is acquitted. Bail bond executed by him stands cancelled. M. SASIDHARAN NAMBIAR, JUDGE Okb/-