IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 96 of 2008()
1. ABOOBACKER, S/O.MUHAMMAD,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.LALJI P.THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :07/02/2008
O R D E R
R.BASANT, J
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Crl.R.P.No.96 of 2008
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Dated this the 7th day of February 2008
O R D E R
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution for
offences under Sections 279, 338 and 304 (A) I.P.C. The
petitioner now faces a sentence of S.I for a period of six months,
one year and one year respectively for the said offences. There
is a further direction to pay an amount of Rs.5,000/- as fine
under Section 304A I.P.C. Out of the fine amount, an amount of
Rs.2,000/- was directed to be paid to PW1 as compensation
under Section 357(1) Cr.P.C.
2. The crux of the allegations against the petitioner is
that he, on 30/09/2004, at 2 p.m was the driver of a K.S.R.T.C
bus No.KL 154907. He drove the said vehicle in a rash and
negligent manner at an excessive speed endangering human life
through the KSRTC bus stand situated at Batheri. As a result of
such rashness, negligence and excessive speed, the bus which
was to be parked in the bus bay of the K.S.R.T.C. bus stand went
beyond the way and stopped ultimately when it hit against the
wall. One person – PW1 suffered grievous hurt and another – one
Crl.R.P.No.96/08 2
Subair succumbed to his injuries. The F.I.S Ext.P6 was lodged
by an eye witness – PW12, who was present along with the
deceased. Ext.P6(a) F.I.R was registered. Investigation was
completed and final report was filed by PW18.
3. Cognizance was taken by the learned Magistrate. The
petitioner denied the allegations levelled against him.
Thereupon the prosecution examined PWs 1 to 18 and proved
Ext.P1 to P7. PW1 is the injured. PW2 is her husband, an eye
witness, PW3 is the conductor of another K.S.R.T.C bus. He also
claims to be an eye witness. PW4, another alleged eye witness
turned hostile to the prosecution completely. PWs 5 and 6 are
attestors to the scene mahazer Ext.P1. PW7 is the doctor who
examined PW1 and issued Ext.P2 and PW11 is the doctor who
treated her and issued Ext.P5 discharge certificate. PW8 is an
attestor to Ext.P3 inquest report. PW10 is the doctor who
conducted the postmortem examination of the body of the
deceased and issued Ext.P4 postmortem certificate. PW9 is the
Vehicle Inspector of the KSRTC bus and he was examined to
prove that the petitioner was the driver to whom the vehicle was
entrusted on the relevant date. PW12, the informant, claims to
be an eye witness in Ext.P6 F.I.S; but he turned hostile
Crl.R.P.No.96/08 3
completely to the prosecution. PW14 is yet another attestor to
Ext.P3 inquest report. PW16 is the Motor Vehicle Inspector who
inspected the vehicle driven by the accused and issued Ext.P7
inspection report. PW17 is the Controlling Inspector who
allegedly produced the vehicle documents in respect of the
vehicle to PW18 investigating officer. Those documents have not
been marked before court. PWs 15 and 18 are police officials
who have various roles to play in the registration of the crime
and in the filing of the charge sheet.
4. The accused, in the course of cross-examination of the
prosecution witnesses and when examined under Section 313
Cr.P.C, denied all circumstances which appeared in evidence
and which were put to him. He denied that he was the driver of
the vehicle at the relevant time. He denied the allegation that
the accident occurred on account of any rashness or negligence
on his part. No defence witnesses were examined.
5. The courts below concurrently came to the conclusion
that it was absolutely safe to place reliance on the oral evidence
of PWs 1 to 3 and PWs 9 and 17 to come to the conclusion that
the petitioner was the driver of the vehicle at the relevant time
and that the accident had taken place solely on account of
Crl.R.P.No.96/08 4
rashness and negligence of the petitioner. Accordingly the
courts below proceeded to pass the impugned concurrent
judgments.
6. The petitioner claims to be aggrieved by the
impugned concurrent verdict of guilty, conviction and sentence.
Called upon to explain the nature of challenge which the
petitioner wants to mount against the impugned concurrent
judgments, the learned counsel for the petitioner advances three
specific contentions.
7. The learned counsel for the petitioner first of all
contends that the prosecution has not succeeded in establishing
the identity of the driver of the vehicle. The learned counsel
placing reliance on binding precedents urges that the identity of
the offender is as important an ingredient to be proved in a
traffic offence case as in any other case. The courts below
erred in not giving due importance and significance to the
ascertainment of the identity of the offender.
8. I have considered this contention in detail. PW1, an
injured and her husband PW2 who were without any dispute
present in the bus stand at the relevant time had spoken that the
petitioner was the driver of the vehicle at the relevant time.
Crl.R.P.No.96/08 5
PW3, a conductor of another K.S.R.T.C bus who was also
allegedly present at the scene of the crime had identified the
petitioner to be the driver of the vehicle. PWs 4 and 12 had, of
course, turned hostile and their evidence offers no specific help
for the purpose of identification of the accused. The courts
below further relied on the evidence of PWs 9 and 17 to support
the evidence of PWs 1 to 3 about the identity of the offender.
PW9, the Vehicle Inspector and PW17, the Controlling Inspector,
though not eye witnesses to the occurrence, made specific and
categoric statement that the petitioner was the driver to whom
the vehicle was entrusted for driving on that day. PW17 claimed
that the relevant documents to show that fact were also handed
over to the investigating officer ; but for obscure reasons, those
documents have not been produced before court.
9. A criminal trial court cannot deteriorate into a mere
effort to identify whether the investigating officer has played his
part properly and to perfection. The criminal trial also is an
endeavour on the part of the system to ascertain the truth.
Merely because of inadequacy in the conduct of the prosecution
or the investigating officer, the prosecution case cannot fall.
Such vice must generate reasonable doubt in the mind of the
Crl.R.P.No.96/08 6
court. The evidence of PWs 1 to 3 established beyond the pale of
doubt or controversy that the petitioner was the driver of the
vehicle at the relevant time. This evidence of PWs 1 to 3 is
further supported by the oral evidence of PWs 9 and 17 though
they have not produced the relevant documents which would
have sealed the fate of the controversy which is attempted to be
raked up now. That inadequacy, according to me, cannot deliver
any advantage to the accused. The finding that the petitioner
was the driver of the vehicle at the relevant time is according to
me, absolutely justified and the same does not warrant revisional
interference.
10. Secondly, the learned counsel for the petitioner points
out that the evidence of PWs 1 to 3 does not justify the
conclusion that rashness or negligence of the driver of the
K.S.R.T.C bus was responsible for causing the accident. On this
aspect again, we have to rely on the evidence of PWs 1 to 3 as
also the admitted earlier statement given by PW12 in Ext.P6. In
view of the hostility of PW12, Ext.P6 cannot be reckoned as
substantive evidence. I need only take note of the fact that the
oral evidence of PWs 1 to 3 get support and inspiration from the
contents of the prompt F.I.S Ext.P6 lodged by PW12 who
Crl.R.P.No.96/08 7
admitted that earlier statement of his.
11. The K.S.R.T.C bus, which must have been taken to the
bay and stopped there to enable passengers to embark did not
stop at the bay. It went beyond the bay, entered the area where
passengers sit and then stopped ultimately when it hit against
the wall of the K.S.R.T.C. bus stand. The deceased was caught in
between and the victims were knocked down by the bus resulting
in injuries to them. The evidence of PWs 1 to 3 as also the
contents of the scene mahazer Ext.P1 declares eloquently the
cause of the accident and the negligence/rashness of the driver
of the K.S.R.T.C bus. It would be puerile and perverse for any
prudent mind with the available evidence to jump to a conclusion
that the rashness and negligence have not been established.
12. The learned counsel for the petitioner attempts to
advance an argument that, at any rate, it must be concluded that
mechanical defect of the vehicle must have led to the accident.
In this context, we have the oral evidence of PW16, Motor
Vehicle Inspector who had inspected the vehicle as also Ext.P7
inspection report submitted by him. There is absolutely no
scintilla of material to even remotely suggest that the vehicle
had any mechanical defect as to justify the hypothetical
Crl.R.P.No.96/08 8
contention urged that such failure of the break system must have
caused the accident and not the negligence of the driver,
whoever he be. There is absolutely nothing available in evidence
to suggest that the vehicle had any mechanical defect.
13. The learned counsel for the petitioner relying on the
incongruity between the evidence of two witnesses as to whether
the vehicle was coming from Mysore or from the workshop
advances a contention that the vehicle must have had a
mechanical defect and the vehicle must have been taken to the
workshop and the theory of mechanical defect is indicated by
such evidence of one of the witnesses that the vehicle was
coming from the workshop. I am unable to accept this
contention at all. The evidence of PW16 and Ext.P7 knock the
bottom out of the theory that the vehicle was having any
mechanical defect.
14. I am in these circumstances satisfied that the
concurrent conclusions of the courts below that the accident had
taken place on account of the rashness/negligence of the driver
of the K.S.R.T.C bus is correct and the same does not warrant
any interference in revision.
15. The learned counsel for the petitioner then raises a
Crl.R.P.No.96/08 9
contention that at any rate the offence under Section 279 I.P.C is
not made out. The crux of the contention is that under Section
279 I.P.C, driving must have been on a public way. The accident
in this case took place not on any public way; but in the
K.S.R.T.C. bus stand. The same cannot be reckoned as public
way. Therefore, the conviction under Section 279 I.P.C is
unjustified, it is urged.
16. I am unable to accept this contention. The expression
public way used in Section 279 I.P.C must yield to a reasonable
and rational understanding. Members of the public as also the
buses coming into the bus station have a right to use the said
way. Though inside the K.S.R.T.C. bus station, the way inside
the bus station cannot be said to be anything other than a public
way for the purpose of Section 279 I.P.C. Public way can be
understood only to mean way in which the public have a right to
use. It cannot for a moment be urged that the tracks inside the
bus station in which buses are plied and passengers have to
frequent are not public ways as to exclude the applicability of
Section 279 I.P.C. The said contention cannot also succeed.
17. Lastly it is contended that the sentence imposed is
excessive. The petitioner is a K.S.R.T.C bus driver and a
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conviction and sentence imposed on him would entail loss of
employment for him, it is urged.
18. I have considered the nature of the allegations and
the proof that has been offered in support of the allegations. I
am unable to agree that in the facts and circumstances of this
case a deterrent substantive sentence of imprisonment can be
avoided. The nature of the allegations and the nature of the
evidence, that has been tendered do unmistakably lead me to the
conclusion that a deterrent substantive sentence of
imprisonment is inevitable in the facts and circumstances of this
case; but I take note of the fact that deterrence in a case like
this does not necessarily depend on the length of the period that
the offender spends behind the bars. Leniency can be shown on
the question of sentence and the length of the period of
imprisonment can be reduced, I am satisfied.
19. In the result:
a) This Crl.R.P is allowed in part.
b) The verdict of guilty, conviction under Section 279,
388 and 304A I.P.C are upheld.
c) But the sentence imposed on the petitioner for the
said offences is reduced to S.I for a period of three months, four
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months and six months respectively. The sentence shall run
concurrently.
d) The direction to pay a fine of Rs.5,000/- under Section
304A I.P.C and in default to undergo S.I for a period of three
months is also upheld.
20. The petitioner shall now surrender before the learned
Magistrate for execution of the modified sentence hereby
imposed on or before 31/3/2008. Till that date, the sentence
shall not be executed. If the petitioner does not so appear before
the learned Magistrate on or before 31/03/2008, the learned
Magistrate shall thereafter proceed to execute the modified
sentence hereby imposed.
(R.BASANT, JUDGE)
jsr
Crl.R.P.No.96/08 12
Crl.R.P.No.96/08 13
R.BASANT, J
Crl.M.A.Nos.21 & 65 of 2008
in Crl.R.P.No.765 of 2007
ORDER
17th DAY OF JANUARY 2008