IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 491 of 2000()
1. RAJESHKUMAR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
Dated :26/09/2007
O R D E R
J.B.KOSHY, J.
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Crl.R.P.No.491 OF 2000
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Dated 26th September, 2007
ORDER
Revision petitioner/accused was found guilty for
the offence punishable under Section 279 & 304 of the Indian
Penal Code by the Assistant Sessions Judge, Thrissur. He was
sentenced to undergo simple imprisonment for one year under
Section 304(A) of the Indian Penal Code and simple
imprisonment for three months under Section 279 of the Indian
Penal Code. In appeal conviction was upheld, but, sentence
was modified. Operative part of the judgment of the Sessions
Judge is as follows:
“IN THE RESULT:
a) This appeal is allowed in part.
b) The verdict of guilty and conviction of
the appellant u/s.304-A and 279 IPC are
upheld.
c) But the sentence imposed on the
appellant u/s.304-A IPC. is modified
and reduced. The sentence imposed on
him u/s.279 IPC and the further
direction that the sentence shall run
concurrently are upheld. The
supersession of the sentence imposed on
the appellant by the learned Magistrate
u/s.304-A I.P.C., the appellant is
setneced to undergo simple imprisonment
for a period of six months and to pay a
fine of Rs.5000/-. In default ofCrl.R.P.491/2000 2
payment of fine he shall undergo
simple imprisonment for a further
period of three months.
d) The appellant is further disqualified
from driving any vehicle for a period
of one year from the date of
endorsement of such disqualification
of his driving licence.”
Prosecution case is that the accused drove KBR 2849
(Kadampuzha Amma) bus through Thrissur-Shornur road in a
rash and negligent manner so as to endanger the personal
safety of others on 20-10-1995 and caused the bus to hit
against a cyclist Appu alias Chandrasekharan who was riding
the bicycle through the western portion of road at 6.15
p.m. and that the bus run over the victim causing his
death. The place of occurrence is Thirur Desom. The
accused drove the bus in a rash and negligent manner and
also in over speed with the knowledge that his act may
cause death of others. In 313 statement accused denied the
allegations. His defence case was that he was not the
driver of the bus.
2. PW1 deposed before the court that himself and
the deceased Appu were co-workers and friends, that they
are carpenters, that on the date of occurrence they were
returning home after their work, that the deceased Appu was
Crl.R.P.491/2000 3
riding the bicycle towards north keeping left side of the
road through Shoranur-Thrissur public road, that he was
also riding in another bicycle behind Appu, that the
incident occurred in between 6 p.m. and 7 p.m. at a place
called Thirur, that a bus came from the opposite direction
hit against the cyclist Appu and the bus run over the
victim causing his death, that the bus was driven in over
speed. But, he was declared hostile as he failed to
identify the driver of the bus as accused. According to
him, driver ran away. PW10, an occurrence witness,
identified the number of the offending bus as KBR 2489
`Kadampuzha Amma’. But, he was also declared hostile as he
also failed to identify the accused. PW3 was the conductor
of the bus at the time of the incident. He deposed before
the court that the accused was the driver of the bus at the
time of the incident, that the accident happened at about
6.30 p.m., that the bus was coming towards Thrissur, that
he had not seen the actual hitting of the bus on the
victim, that he does not know the reason for the accident,
that he produced Ext.P3 trip sheet book before the police,
that Ext.P3(a() is the trip sheet of the relevant date,
wherein the name of the accused is entered as the driver of
the bus and that he put his signature in the trip sheet as
the conductor. Even though PW3 was declared hostile, he
Crl.R.P.491/2000 4
proved and identified the accused as the driver of the bus
which was involved in the accident.
3. PW6 Doctor conducted post-mortem examination
on the body of deceased Appu and issued Ext.P7 post-mortem
certificate. PW6 opined that the death was due to the head
injury. PW7, the then Motor Vehicle Inspector, Thrissur
inspected the bus involved in the incident and issued
Ext.P8 report. He deposed that the vehicle was having no
mechanical defect and that the brake was efficient. PW9
Village Assistant, then attached to Killannur Village,
inspected the scene of occurrence and prepared the scene
plan, Ext.P10. PW11, then Sub Inspector attached to Viyyur
Police Station, registered the crime on the basis of Ext.P1
F.I. Statement furnished by PW1. The F.I.R. has been
marked as Ext.P12 through him. PW12 Circle Inspector
conducted the investigation in this case. He prepared
Ext.P6 inquest report regarding the dead body of the
deceased on 21.10.1995 at Thrissur Medical College
Hospital. PW5 identified the dead body of the victim and
he is a witness to Ext.P6 inquest report. PW12 Circle
Inspector inspected the scene of occurrence and prepared
Ext.P9 scene mahazar on 21.10.1995, the next day of the
incident. PW8 is an attestor to Ext.P9 scene mahazar.
Crl.R.P.491/2000 5
M.O.2 series are the glass pieces taken from the scene of
occurrence under Ext.P9 scene mahazar. M.O.I is the blood
stained cloth worn by the victim. In view of the
deposition of PW3 and Ext.P3 trip sheet maintained in the
offending bus, it cannot be contended that accused was not
the driver of the bus involved in the incident. PW1 and
PW10 very clearly deposed before the court that the victim
was riding the cycle through the western side of the
Shoranur-Thrissur road and that the victim had not come
from the side road as suggested by the defence. The scene
mahazar (Ext.P9) shows that the tarred road is having a
width of 7.85 metres at the place of occurrence and that
the place of occurrence is somewhat on the western
extremity of the tarred road. As per the scene mahazar the
place of occurrence is 62 cms. east from the western
extremity of the tarred road. Thus from the evidence of
PW1, PW2 and PW10 and Ext.P9 scene mahazar it is very clear
that the road is having sufficient width at the scene of
occurrence and that the victim was riding through the
western extremity of the road keeping the left side of the
road. In these circumstances, it is very evident that the
accident occurred due to the rashness and negligence of the
accused driver. The appellate court found as follows:
Crl.R.P.491/2000 6
“In every accident case it is of crucial
importance that the court must try to
ascertain the lie of the scene of the
occurrence. We get a clear idea about
the scene of occurrence from the
evidence tendered by the prosecution
witnesses as also the data perceived by
the investigating officer at the scene
of the occurrence described in Ext.P9
scene mahazar. The road at the place of
occurrence is broad and the tarred
portion of the road has a width of 7.85
metres. The road margins are there on
either side of the road and the western
road margin a width of 7.60 metres. The
eastern road margin has a width of 3.20
metres. Ext.P10 sketch of the scene of
occurrence is also available to help the
court to draw a clear impression. The
spot of occurrence is located at a spot
62 cms to the east of the western kerb.
At the scene of occurrence, the Poomala
road comes from the east and joins the
main road. Broken glass pieces were
available at the scene to identify the
spot of occurrence. PWs 1,2,3 and 10
have been declared hostile, but their
evidence, though hostile gives us a
clear picture of the manner in which the
accident had taken place. The bus
driven by the appellant/accused had cut
across entirely to its wrong side of the
road and the impact had taken place at a
spot close to the western kerb of the
tarred road.”
After considering the evidence appellate court also found
that accident occurred while accused was driving the vehicle
rashly and negligently and it occurred at the wrong side of
the accused. I see no ground to interfere in the concurrent
findings of the courts below in revisional jurisdiction.
Crl.R.P.491/2000 7
Findings are not perverse but based on proper analysis of
evidence. With regard to sentence, appellant curt has
already taken a lenient view. According to the public
prosecutor also for rash and negligent driving, no lenient
view can be taken. However, I reduce the punishment of
simple imprisonment of six months to three months for the
offence punishable under Section 304-A. Fine amount or
default sentence is not interfered with. I confirm the
conviction and sentence under Section 279 IPC. Therefore,
conviction under Sections 279 IPC and 304-A I.P.C. are
confirmed. Sentence imposed under Section 279 IPC is also
confirmed. Imprisonment awarded under Section 304-A alone
is reduced from six months to three months. Fine imposed
under Section 304A I.P.C. is not interfered with. All other
sentences are confirmed. Substantive sentence of
imprisonment need be suffered concurrently. Impugned
judgment is modified to the above limited extent and
revision petition is disposed of accordingly.
J.B.KOSHY
Judge
tks