IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2658 of 2003(C)
1. KARIPPAYI NISAM, AGED 26 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.N.SUKUMARAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :02/12/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.2658 OF 2003
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Dated this the 2nd day of December, 2009
ORDER
Revision petitioner is the accused in C.C.No.178/98 of
Judicial First Class Magistrate Court, Nilambur and appellant in
Crl.Appeal No.123/2000 of Sessions Court, Manjeri. He was convicted
under Section 279, 337, 338 and 304(A) of IPC and was sentenced to
undergo simple imprisonment for three months and to pay a fine of
Rs. 500/- under Section 279 of IPC, in default, to undergo simple
imprisonment for one month, sentenced to undergo simple
imprisonment for three months and to pay a fine of Rs. 500/- under
Section 337 of IPC, in default, to undergo simple imprisonment for one
month, sentenced to undergo simple imprisonment for six months and
to pay a fine of Rs. 500/- under Section 338 of IPC , in default, to
undergo simple imprisonment for one month. He is also sentenced to
undergo simple imprisonment for one year and to pay a fine of Rs.
1000/- , in default, to undergo simple imprisonment for two months
under Section 304(A) of IPC. The sentences were ordered to run
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concurrently. He was also disqualified for one year from holding any
driving licence to drive all classes or description of vehicles as
provided under Section 20 of Motor Vehicles Act. On appeal by the
accused, his conviction and sentence were confirmed. The accused has
now come up in revision challenging his conviction and sentence.
2. The case of the prosecution as shaped in evidence before
the trial court was that the accused drove the bus bearing Reg.
No.KLL/21 on February 10, 1998 at about 9.30 a.m. along the
Nilambur-Manjeri road and dashed against the lorry bearing Reg. No.
T.N.43/5373 at Thottintakkara which came on the opposite side as a
result of which two passengers of the bus died and PWs 2 and 3
sustained grievous hurt and PW4 and CW5 sustained simple injuries in
the accident and that thereby committed the offences punishable under
Section 279, 337, 338 and Section 304(A) of IPC.
3. The accused on appearance before the trial court pleaded
not guilty to a charge under Section 279, 337, 338 and Section 304(A)
of IPC. PWs 1 to 18 were examined and Exts.P1 to P23 were marked
on the side of the prosecution. When questioned under Section 313 of
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Cr.P.C. by the trial court, the accused submitted that he has not
committed any offence. DW1 was examined on his side.
4. The trial court on an appreciation of evidence found the
accused guilty of the offences punishable under Section 279, 337, 338
and Section 304(A) of IPC, convicted him thereunder and sentenced
him as aforesaid which is confirmed in appeal. The accused has now
come up in revision challenging his conviction and sentence.
5. Heard the counsel for the revision petitioner and the Public
Prosecutor.
6. The following points arise for consideration :
1) Whether the conviction of the revision
petitioner under Section 279, 337, 338 and Section
304(A) of IPC by the trial court which is confirmed
in appeal can be sustained ?
2) Whether the sentence imposed in
excessive or unduly harsh ?
Point No.1
7. PWs 1 to 18 were examined and Exts.P1 to P23 were
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marked on the side of the prosecution before the trial court to prove the
guilt of the accused. PWs 1 and 2 to 5 are the passengers of the bus.
PWs 2 and 3 sustained grievous injuries and PW4 sustained simple
injuries. PW1 is the first informant. Ext.P1 is the FI statement. PW 2
and 4 turned hostile and did not support the prosecution. PWs 1 to 3
and 5 testified that the accident occurred due to the over speed of the
bus. PW6 is the driver of the lorry involved in the accident who turned
hostile and did not support the prosecution. PWs 7 and 10 are the
attesting witnesses to Ext.P2 inquest report of deceased Mohanan.
PW8 is the son of deceased Alavi. PW9 is the owner of the bus who
testified that at the time of the accident, the accused was the driver of
the bus. He proved Ext.P17(a) trip sheet of the bus. PW11 is the
doctor who has conducted Autopsy and issued Exts.P3 and P4
postmortem certificates of deceased Mohanan and Alavi. He also
examined PWs 2 and 4 and issued Exts.P5 and P6 wound certificates.
PW12 is the Doctor who issued Ext.P17 discharge certificate of PW2.
PW13 is the attesting witness to Ext.P8 scene mahazar . PW14 is the
ASI who has recorded Ext.P1, registered Ext.P1(a) FIR and prepared
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Ext.P9 inquest report. PWs 15 and 17 are attesting witnesses to Ext.P9
inquest report. PW16 is the Doctor who examined PW3 and CW5 and
issued Exts.P10 and P11 wound certificates. PW18 is the Circle
Inspector who conducted the investigation. The report of the AMVI
was marked through him as Exts.P20 and P21. After completing the
investigation PW18 has laid the charge before the trial court.
8. The accident is not disputed. It is also not disputed that
two of the passengers of the bus died and PW2 and PW3 sustained
grievous hurt and PW4 and CW5 sustained simple injuries in the
accident which is also proved by the evidence adduced on the side of
the prosecution. It is also proved by the evidence of PW9 the owner of
the bus and Ext.P17(a) the trip sheet that the accused was driving the
offending bus at the time of the accident and PW6 was the driver of
the lorry involved in the accident. The only question which arises for
consideration is whether the accident occurred due to the rash and
negligent driving of the offending bus by the accused. PWs 1 to 3 and
PW5 , passengers of the bus stated that the bus was driving at a high
speed and that the rear right side of the bus hit the front right side of the
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lorry . It is admitted that the bus was coming down the slop and the
lorry was coming up the slop. The case of the accused is that accident
occurred due to the negligence on the part of the driver of the lorry
which was coming at a high speed on the opposite side. There is no
substance in the contention. The lorry was full of load . Therefore, it
is difficult to believe that the lorry was coming at a high speed. At the
same time, the bus was going down the slop.
9. The counsel for the revision petitioner argued that the rear
side of the bus hit the front right side of the lorry which itself shows
that the accused attempted to avoid a head on collision and that
therefore there was no negligence on the part of the accused. I am
unable to agree. PWs 1 to 3 and 5 have stated that bus was coming at a
high speed . Further there was tyre mark on the road which shows that
even after applying the break, the accused was unable to stop the bus
due to over speed. An attempt was made on the side of the accused by
examining DW1 to show that the bus was coming at a normal speed.
But both the courts below have rejected his evidence for obvious
reasons. On going through his evidence it is seen that he is a friend of
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the accused and was very eager to help him. Therefore , both the courts
below are perfectly justified in rejecting his evidence.
10. For all these reasons, I am inclined to confirm the finding
of the trial court that the accident occurred due to the rash and
negligent driving of the offending bus by the accused. That being so,
I confirm the conviction of the revision petitioner under Sections 279,
337, 338 and 304(A) of IPC rendered by the trial court which is
confirmed in appeal.
Point No.2
11. Regarding the sentence, the trial court imposed a sentence
of simple imprisonment for three months and to pay a fine of Rs. 500/-
under Section 279 of IPC, simple imprisonment for three months and to
pay a fine of Rs. 500/- under Section 337 of IPC, simple imprisonment
for six months and to pay a fine of Rs. 500/- under Section 338 of IPC
and simple imprisonment for one year and to pay a fine of Rs. 1000/-
under Section 304(a) of IPC. The incident occurred during 1998. But
two persons died in the accident. Taking into consideration the above
aspect, I feel that the sentence of imprisonment under Section 304(a) of
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IPC can be reduced to six months. Sentence imposed under other
Sections by the trial court which is confirmed in appeal is upheld.
In the result, revision petition is allowed in part. Conviction of
the revision petitioner under Section 279, 337, 338 and Section 304(A)
of IPC is confirmed. The sentence imposed under Section 279, 337
and 338 of IPC and sentence of fine under Section 304(A) of IPC is
confirmed. The substantive sentence imposed under Section 304(A) of
IPC is reduced to six months. The direction of the trial court that the
substantive sentences of imprisonment shall run concurrently and also
disqualifying the accused to hold driving licence for one year is also
confirmed. His bail bonds are cancelled. The revision petitioner shall
surrender before the trial court on or before 30-12-2009.
P.Q.BARKATH ALI
JUDGE
sv.
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