IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1216 of 2003()
1. HAMEED, S/O. ABDU RAHIMAN,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1216 OF 2003
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Dated 29th June, 2010
O R D E R
Petitioner, accused in C.C.21/1996
was convicted for the offences under
Sections 279, 337 and 338 of Indian Penal
Code and Section 184 read with Section 177
of Motor Vehicles Act by Judicial First
Class Magistrate-II, Perinthalmanna.
Petitioner challenged the conviction and
sentence before Sessions court, Manjeri in
Crl.A.77/1999. Learned Additional Sessions
Judge on re-appreciation of the evidence
confirmed the conviction and sentence and
dismissed the appeal. It is challenged in
this revision.
2. Revision petitioner would
contend that none of the witnesses
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identified petitioner as the driver of the
bus and therefore, conviction of the
petitioner is illegal. It is also contended
that from the evidence of the witnesses, at
best it could be said that the bus was being
run in over speed, which by itself will not
constitute the offences alleged and the
witnesses have not spoken about any
negligence attributed to the driver and the
courts below did not properly appreciate the
material contradictions, omissions and
discrepancies in the evidence and therefore,
conviction is unsustainable.
3. Prosecution case is that petitioner was the driver of bus KL-10-B- 1072 which was proceeding along Melattur-
Perinthalmanna public road on 5/12/1995 at
about 12.45 p.m. Petitioner was driving the
bus rashly and negligently, so as to
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endanger human life. When it reached near
Melattur Bazar, it capsized after covering
a hump due to the said rash and negligent
driving and caused hurt and grievous hurt to
35 passengers. Petitioner thereby committed
the offence. Petitioner pleaded not guilty.
Prosecution examined 28 witnesses and marked
Ext.P1 to P40. Petitioner did not adduce any
evidence. Learned Magistrate on the evidence
found that though many of the witnesses
turned hostile, evidence of Pws.1,3,4,5,6
and 13 establish that petitioner was the
driver of the bus and the bus after covering
a hump due to the rash and negligent driving
of the petitioner capsized, causing hurt and
grievous hurt to 35 passengers including
Pws.1 to 6 and thereby committed the
offences. Though petitioner contended that
the incident was not due to any negligent,
CRRP 1216/03 4
but due to mechanical defect, relying on the
evidence of PW22, AMVI and Ext.P39
inspection report it was found that there
was no mechanical defect to the vehicle and
the evidence establish that immediately
before the bus capsized, petitioner had
lighted a cigarette and was not in control
of the vehicle and in such circumstances, he
was found guilty of the offences. He was
sentenced to simple imprisonment for three
months and fine of Rs.1,000/- for the
offence under Section 279 and simple
imprisonment and fine of Rs.500/- for the
offence under Section 337 and simple
imprisonment for six months and fine of
Rs.1,000/- for the offence under Section 338
and fine of Rs.100/- and in default simple
imprisonment for ten days for the offence
under Section 184 read with Section 177 of
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Motor Vehicles Act. All the substantive
sentences were directed to be run
concurrently .Petitioner was also granted
set off as provided under Section 428 of
Code of Criminal Procedure. Learned Sessions
Judge re-appreciated the evidence and
confirmed the conviction and sentence.
4. Argument of the learned counsel
appearing for the petitioner is that none of
the witnesses identified petitioner as the
driver of the bus and in any event evidence
do not disclose that the bus capsized due to
the rash and negligent driving and on the
evidence it should have been found that bus
capsized only due to mechanical defect.
Learned Public Prosecutor pointed out that
the evidence of Pws.1,4,5 and 6 injured
passengers of the bus who had opportunity to
identify the driver while travelling in that
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bus, identified petitioner as the driver,
which was not challenged in cross
examination and therefore, petitioner is not
entitled to dispute his identity as driver
of the bus. It was also pointed out that the
evidence of Pws.1,4,5, and 6 along with that
of Pws.3 and 13 establish that just before
the bus capsized there was hump and when
the bus was covering that hump petitioner
was lightening a cigarette and the bus was
being driven in over speed and as a result
it capsized and it is also proved that 35
passengers of the bus sustained hurt and
grievous hurt by the evidence of PW7, the
doctor with Exts.P2 to 36 wound certificates
and therefore, conviction is perfectly
legal.
5. Though revision petition
petitioner disputed his identity, when
CRRP 1216/03 7
Pws.1,4,5,6,14,24,25 and 27 were examined,
they identified petitioner as the driver of
the bus at the relevant time. Their version
that petitioner was the driver was not
challenged in cross examination. It is seen
that when petitioner was questioned under
Section 313 of Code of Criminal Procedure
also, he has no case that he was not the
driver of the bus. When he was asked whether
he has anything more to say apart from
answering to the question put to him, he
only stated that the incident was not due to
his negligence but as the leaf of the bus
had broken. Therefore, petitioner is not
entitled to contend before the revisional
court that he was not the driver of the bus
at the relevant time, as he did not dispute
that fact when the witnesses were being
examined.
CRRP 1216/03 8
6. Fact that passengers of the bus
sustained hurt and grievous hurt is not
disputed. As rightly found by the courts
below evidence of PW7 the doctor with
Exts.P2 to 36 wound certificates establish
that 35 passengers of the bus was examined
by him and noted the injuries recorded in
Exts.P2 to 36 wound certificates. Ext.P2
wound certificate shows that the injured
sustained fracture of humor. Exts.P4 to P11
wound certificates also establish that those
injured also sustained fractures. The other
injured only sustained hurt. In such
circumstances, fact that those victims were
passengers of the bus and they sustained
injuries were also not disputed. Therefore,
prosecution has established that consequent
to the capsizing of the bus, 35 passengers
of the bus sustained injury and several of
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them sustained grievous hurt and others
simple hurt.
7. Crucial question is whether the
bus capsized due to the rash and negligent
driving of the bus by the petitioner. Though
it is contended by the revision petitioner
and it was argued by the learned counsel
that the evidence of witnesses do not
establish that there was no negligence on
the part of the petitioner and at best it
would only show there was over speed, as
rightly pointed out by the learned Public
Prosecutor evidence is otherwise. Evidence
of Pws.1,3,4,5 and 13 establish that just
before the bus capsized, petitioner was
lightening a cigarette and was not taking
proper care in driving the bus. Their
evidence also establish that bus was in over
speed. It is also in evidence that in spite
CRRP 1216/03 10
of the fact that there was a hump in the
road, petitioner did not slow down the
vehicle. It is in such circumstances,
petitioner lost control of the vehicle and
the bus capsized. Though it was contended
that the bus over turned not because of the
negligent driving but because of mechanical
defect, as rightly found by the courts
below, Ext.P39 report of AMVI with evidence
of PW22 conclusively establish that there
was no mechanical defect to the vehicle
before the incident. Though leaf was found
broken, evidence establishes that it was in
the incident, when the bus capsized the
damage was caused and not before the
incident. Even if leaf was broken the bus
would not have capsized. In such
circumstances, finding of the courts below
that petitioner was driving the bus rashly
CRRP 1216/03 11
and negligently, so as to endanger human
life and by such driving caused grievous
hurt and hurt to 35 passengers is in
accordance with the evidence. In such
circumstances, conviction of the petitioner
for the offences is perfectly legal and
warrants no interference.
8. Then the only question is
regarding the sentence. Argument of the
learned counsel is that incident occurred
in 1995 and at this distant point of time
petitioner may not be sent to prison and
leniency may be shown. Petitioner was the
driver of the stage carriage bus. Life of
the passengers of the bus is definitely in
the hands of the driver of the bus. Evidence
establish that petitioner was grossly
negligent in driving the bus. Considering
the fact that the driver of the stage
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carriage bus are unconcerned about the
safety of the passengers and incidents of
this are common, interest of justice does
not warrant any leniency. In such
circumstances, I find no reason to interfere
with the sentence also.
Revision fails and is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.