High Court Kerala High Court

Asokan vs State Of Kerala on 3 April, 2009

Kerala High Court
Asokan vs State Of Kerala on 3 April, 2009
       

  

  

 
 
  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

Crl.R.P.No.98/2000 – 2 –

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

Crl.R.P.No.98/2000 – 3 –

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.

Crl.R.P.No.98/2000 – 4 –

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

Crl.R.P.No.98/2000 – 5 –

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

Crl.R.P.No.98/2000 – 6 –

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

Crl.R.P.No.98/2000 – 7 –

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

Crl.R.P.No.98/2000 – 8 –

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

Crl.R.P.No.98/2000 – 9 –

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

Crl.R.P.No.98/2000 – 10 –

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