IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 98 of 2000()
1. ASOKAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/04/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.98 of 2000
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Dated: 3rd April, 2009
ORDER
Challenge in the revision is against the concurrent verdict of
guilt rendered against the revision petitioner/accused for the offences
punishable under Sections 279, 337 and 304 I.P.C. He was
prosecuted for the aforesaid offences along with Section 134 (a) and
(b) of the M.V.Act. He pleaded not guilty to the offence. The learned
Magistrate, after trial, found him guilty of the offences under Sections
279, 337 and 304 I.P.C. and convicted him thereunder sentencing
him to undergo rigorous imprisonment for three months under
Section 279 I.P.C., six months under Section 337 I.P.C. and one year
under Section 304 I.P.C. directing him to undergo the sentences
concurrently. He was not found guilty of the offences under Section
134 (a) and (b) of the M.V.Act and acquitted of such offences. In
appeal, the learned Sessions Judge confirmed the conviction and also
the sentence without any modification. Aggrieved by the conviction
and sentence, questioning its legality, propriety and correctness, he
has preferred this revision.
2. The gist of the prosecution case is that on 21.3.1992 the
accused drove a tourist bus, namely, A.K.M.bus bearing Reg.No.KEV
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2121, from west to east, through Paravoor-Parippally public road in a
rash and negligent manner at an enormous speed endangering
human life. When the vehicle reached Puthenkulam at about 1.45
P.M., in view of the rash and negligent driving of the vehicle by the
accused, it went to the extreme left side of the road, hit against an
electric post situate on the northern side, far away from the tarred
portion of the road, and a passenger in the vehicle travelling in the
foot board sustained fatal injuries and was thrown out of the bus,
and he succumbed to the injuries sustained instantaneously at the
spot. Two other passengers sitting on the left side of the bus also
sustained fatal injuries on account of the collision of the bus with the
electric post. They too after being taken to hospital on account of the
fatal injuries sustained, breathed their last. Some other passengers
travelling in the bus too sustained injuries. A crime was registered
suo motu by P.W.15 who then was the S.I.of Police, Paravoor after he
revealed the spot on getting information of the occurrence. The
investigation of the trial was taken over and conducted by P.W.16,
the then C.I. of Police, Paravoor. During the course of the
investigation, the accused was arrested and later enlarged on bail.
After completing the investigation, P.W.16 laid the charge indicting
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the accused for the offences punishable under Sections 279, 337 and
304 of the I.P.C. and Section 134 (a) and (b) of the M.V.Act.
3. The accused, on appearance before the court, pleaded not
guilty when the offences were made known. Prosecution examined
P.Ws.1 to 16 and got marked Exts.P1 to P14 to prove his guilt. The
accused during the course of the examination of the prosecution
witnesses and also when questioned under Section 313 Cr.P.C.
maintaining his innocence contended he was not the driver of the bus
involved in the occurrence. Though such a defence was canvassed, no
defence evidence was adduced.
4. The learned Magistrate, after appreciating the materials,
found that the accused was the driver of the offending bus involved in
the occurrence which resulted death of three persons and also
injuries to several others and the occurrence arose on account of his
culpable rash and negligent driving of the bus at enormous speed
endangering human life. The accused was found guilty of the offences
under Sections 279, 337 and 304 I.P.C. and convicted and sentenced
of those offences as indicated earlier. The learned Sessions Judge,
after reappreciation of the evidence, in appeal, confirmed the
conviction, and upheld the sentence without modification.
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5. I heard the learned counsel for the accused and also the
Public Prosecutor.
6. Learned counsel for the accused assailed the conviction
contending there was absolute paucity of evidence establishing the
identity of the accused as the driver of the bus involved in the
occurrence. Other than the evidence of P.W.12, a headload worker
who claimed to be a passenger in the bus, there was nothing on the
materials produced by the prosecution to fix the accused as the driver
of that bus. P.W.12 who identified the accused, according to the
learned counsel, carried out his engagement as a headload worker at
a place in Kallambalam far away from the place of occurrence and as
such his evidence should not have been received by the court to
establish that the accused was the driver of the bus. It has also come
out during the cross examination of P.W.12 that after the occurrence
he saw the accused for the first time before the court. Relying on
Vijayan v. State of Kerala [1999(1) KLT 760(SC) ], it is contended
by the learned counsel, such identification made by the accused
should not have been relied on to hold that the accused was the
driver of the bus involved in the occurrence. No identification parade
was conducted in the case, and so much so, the identification of the
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accused by a solitary witness that too long after the occurrence
before the court should not have been accepted, submits the learned
counsel relying on Raju v. State of Maharashtra [(1998) 1 S.C.C.
169]. Over and above disputing the identity of the accused as the bus
driver, the learned counsel contended that there was nothing on the
materials to conclude that the driver had driven the vehicle in a rash
and negligent manner endangering human life and that on account of
his reckless driving, the accident occurred. Absence of tyre marks at
the sport, according to the counsel, is indicative that the vehicle was
not driven at a high speed. In the vehicle, a marriage party travelled
and they were returning after attending a marriage with a car just
behind with a videographer, taking pictures with his video. Some of
the passengers travelling in the foot board get their pictures in the
video stretched out of the bus their person and because of their
negligence, one among them hit against the electric post and the
accident occurred for which the driver of the bus could not be held
culpable, is the submission of the learned counsel. At any rate, on the
materials produced, the prosecution has not succeeded in proving
culpable criminal negligence on the part of the driver and also that his
rash and negligent driving had resulted the accident. So much so, it is
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submitted that the conviction founded against the accused for the
offences under Sections 279, 337 and 304 I.P.C. is liable to be
interfered, allowing the revision.
7. I have perused the records of the case giving due
consideration to the submission of the counsel. Perusing the records,
it is seen, the prosecution had relied on the evidence of P.W.11, the
owner of the bus and also P.W.12, a passenger to prove that the
accused drove the bus as its driver when the accident occurred.
P.W.11, the owner of the bus had given evidence before the court
that the vehicle was taken in the morning by the accused. When a
suggestive question was put to him that the vehicle was not driven by
the accused on the date of occurrence and that he had spoken to the
contrary in view of his enmity towards the accused, the witness
asserted it was the accused who drove that vehicle. Nothing has been
brought out during the cross examination of P.W.11 to hold that he
had any axe to grind against the accused other than a suggestion
that his assertion before the court that the accused was the driver of
the bus on account of previous enmity. What was the reason thereof
has not been shown. Even when questioned under Section 313
Cr.P.C. the accused had not offered any explanation to show that the
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owner had any grudge towards him to state falsely that he was the
driver of the bus. The best person to speak who drove the vehicle,
needless to point out, is the owner of the bus. It is too much to
believe that the owner would make a false assertion that the accused
was the driver if actually he was not so and, further, to perjure
against him before a court of law. I am not relying upon Exts.P7 and
P8 which are purported to have been received from the owner during
the investigation of the crime, wherein it is stated that the owner had
given the particulars of the accused as the driver since the collection
of such materials though permitted by the M.V.Act, cannot be used
as evidence in a criminal trial. Section 161 of the Cr.P.C. prohibits
getting of a signed statement from a witness and as such Ext.P8
statement purported to have been collected from the owner to fix the
identity of the accused as driver naturally should be eschewed from
consideration. Leaving aside Exts.P7 and P8, the evidence of the
owner before the court that the accused was the driver of the bus,
which is found reliable, is more than sufficient to hold so, and the
denial thereof canvassed by the accused is unworthy of any merit.
P.W.12, a passenger in the bus had also given evidence that the bus
was driven by none other than the accused. He gave graphic
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description as to how the occurrence took place. While the bus was
heading its way, seeing a dike in the road for laying pipe, the driver
recklessly severred the vehicle to the left, and it went only the tarred
portion and collided with a post situate on the northern side of the
road. The bus was moving at enormous speed and it could be stopped
only after covering some distance is evident from the fact that the
driver could not control the vehicle even at the time when it collided
against the post. P.W.12 spoke not only about the reckless driving of
the vehicle by the driver but also asserted before court that it was
driven by the accused. He also stated that he knew the accused from
six/seven years earlier to the occurrence and so much so, this was a
case where no identification parade was called for. His assertion that
he knew the accused, it is seen, was found reliable, trustworthy and
convincing to the learned Magistrate who had the opportunity to
watch the demeanour and deportment of the witness while giving
evidence. The learned Sessions Judge who reappreciated the
evidence in appeal also found his testimony reliable and acceptable.
After going through his evidence, I find no reason to take a different
view. The evidence of P.W.12 leave no room for any doubt that it was
the accused who drove the vehicle involved in the accident and the
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occurrence took place due to the rash and negligent driving of the
bus by its driver. The features noticed by P.W.15, the S.I. of Police at
the spot while he prepared inquest over the deadbody of the
passenger who was thrown out of the bus and died at the spot,
clearly spell out that the left side of the bus hit against the electric
post. The damages caused to the electric post and the materials
recovered from the bus etc. as stated in column 8 and 9 in the
inquest report of P.W.6 amply demonstrate that the vehicle was
driven with such recklessness and having no regard for the safety of
the passengers and public. The proved facts and circumstances
involved in the case as borne out by the materials lead to the
irresistible conclusion that the accused was guilty of the offences
under Sections 279 and 337 and 304 of the I.P.C. as found by the
two courts below and the findings of the courts below deserve only
to be upheld, and I do so.
8. The learned counsel has taken exception that the
benevolent provisions of the Probation of Offenders Act had not been
extended to the accused and no reason was stated for its non-
applicability. Having regard to the proved facts and circumstances of
the case where three persons lost their lives in the prime of their life
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solely on account of the reckless driving of the bus, in the backdrop
that motor vehicles on account of culpable criminal negligence and
rash driving by their drivers causing havoc and destruction of
families, have turned out to be mechanised killers. I find that this is
not a fit case which warranted the consideration of the Probation of
Offenders Act. Punishment imposed against the accused considering
the gravity of the offences by no stretch of imagination can be
considered as excessive or unreasonable. No interference with the
sentence is called for. Revision is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE