IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3233 of 2009()
1. MARTIN, S/O.SEBASTIAN,
... Petitioner
Vs
1. STATE OF KERALA (REP.BY THE
... Respondent
For Petitioner :SRI.C.ANILKUMAR (KALLESSERIL)
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :16/10/2009
O R D E R
P.S. GOPINATHAN, J.
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CRL.R.P.NO. 3233 OF 2009
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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