High Court Kerala High Court

Martin vs State Of Kerala (Rep.By The on 16 October, 2009

Kerala High Court
Martin vs State Of Kerala (Rep.By The on 16 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3233 of 2009()


1. MARTIN, S/O.SEBASTIAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA (REP.BY THE
                       ...       Respondent

                For Petitioner  :SRI.C.ANILKUMAR (KALLESSERIL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :16/10/2009

 O R D E R
                       P.S. GOPINATHAN, J.
                        ------------------------------
                    CRL.R.P.NO. 3233 OF 2009
                    --------------------------------------
         DATED THIS THE 16TH DAY OF OCTOBER 2009

                                O R D E R

The revision petitioner is the accused in C.C No.1885 of

2002 on the file of the Judicial Magistrate of First Class-II,

Ernakulam. In Crime No.2006 of 2002, the Sub Inspector of

Police, Kochi City Traffic Police Station filed a chargesheet

against the revision petitioner alleging offence u/s. 279, 337 and

304(A) of I.P.C with an allegation that on 3-7-2002 at 9.30 a.m. the

revision petitioner drove a stage carriage bus bearing registration

No. KL-8/F-7891 from South to north along Ernakulm-Chittoor

road in a rash and negligent manner so as to endanger human life

and on the north of the of Vaduthala railway gate junction it hit

against a Kinetic Honda Scooter bearing registration No.KL-7/H-

4257 ridden by late Saseendran with his wife on the pillion and as

a result Saseendran sustained serious injuries to which he

succumbed. It was alleged that due to the hit, an angle iron of the

CRL.R.P.NO. 3233 OF 2009
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bus fitted at the right side hit at the chest of Saseendran and he

sustained injury which caused the death. The wife of the deceased

Saseendran was examined as PW1. She had also sustained

injuries. The law was put in motion by PW2, who gave Ext.P1

First Information statement. PW5, Head constable recorded

Ext.P1 given by PW2 and registered a case. The investigation was

taken over by PW10, the Inspector of Police. He after completing

the investigation laid the chargesheet before the trial court.

2. The learned Magistrate took cognizance and issued

process. The revision petitioner appeared before the learned

Magistrate in response to the summons. The particulars of the

charge was read over and explained after furnishing the copy of

the chargesheet and connected records. He pleaded not guilty.

Hence he was sent for trial. On the side of the prosecution PWs 1

to 11 were examined and Exts.P1 to P8 and Mo1 were marked.

After closing the evidence for prosecution the revision petitioner

was questioned u/s.313 of the Cr.PC. He denied all the

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incriminating evidence. No defence evidence was adduced. The

learned Magistrate on appraisal of the evidence arrived a finding

that the revision petitioner is guilty for offence u/s. 279, 337 and

304(A) of I.P.C. Accordingly he was convicted and sentenced to

simple imprisonment for three months and a fine of Rs. 1,000/-

with a default sentence of simple imprisonment for one month for

offence u/s. 279 of the I.P.C. For offence u/s. 337 he was

sentenced to simple imprisonment for one month and for offence

u/s.304 A IPC he was sentenced to simple imprisonment for two

years and a fine of Rs. 5,000/- with a default sentence of simple

imprisonment for a further period of one month. The substantive

sentence were ordered to run concurrently.

3. Feeling aggrieved by the above conviction and sentence

the revision petitioner took up the matter in appeal. The 4th

Additional Sessions Judge, Ernakulam by judgment dated

29-7-2009 in Crl. Appeal No. 48 of 2009 dismissed the appeal

and confirmed the conviction and sentence.

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4. Assailing the legality, correctness and propriety of the

above conviction and sentence as confirmed in appeal, this revision

petition was filed. I heard the learned counsel for the revision

petitioner as well as the public prosecutor. The learned counsel for

the revision petitioner took me through the evidence on record.

5. PW1, the wife of the deceased who was the pillion rider

deposed that when the deceased was ridding the above vehicle

along with PW1 on the pillion at 9.30 a.m. on 3-7-2002, the bus

referred above driven by the revision petitioner hit against the

scooter and thereby the angle iron of the bus fitted at the right side

hit on the scooter and pierced at the chest of the deceased as a

result of which he died. Negligence was attributed against the

revision petitioner. PW3 and 4 who are neighbouring shop owners

had also given evidence supporting the evidence adduced by the

PW1. They had also attributed negligence against the revision

petitioner. The identity of the revision petitioner as the driver was

also spoken by the PW3 and 4. The courts below had appreciated

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the evidence of PW1, 3 and 4 and arrived a conclusion that the

revision petitioner was the driver of the bus at the time of the

accident. In fact the identity of the revision petitioner as the driver

of the bus was not disputed by the learned counsel for the revision

petitioner. It was also concurrently found that their evidence

establishes the guilt. I find no reason to disbelieve them. Courts

below had rightly believed them.

6. Ext.P2 is the scene mahazar wherein PW6 is the

attester. A reading of Ext.P6 scene mahazar would show that at

that spot, the tar road was having a width of 7 meters and the spot

of occurrence is shown as 60 cm towards west from the eastern tar

end. The sport of occurrence would indicate that the revision

petitioner who was driving the bus from south to north hit against

the scooter which was ridden in the opposite direction at the

eastern extremity. Spot of occurrence would show that the

deceased had not contributed any negligence. The revision

petitioner had driven to the wrong side, that too to the extreme end

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and hit down the scooter. Spot of occurrence also supports the

evidence of PW1, 3 and 4.

7. According to the learned counsel for the revision

petitioner the right side rear view mirror of the scooter which has a

height of 112 cms from the floor, hit on the angle iron fitted on

the bus which was also at the same height and thus the angle iron

fitted on the body of the bus might have hit the chest of the

deceased. The learned counsel for the petitioner also argued that

the accident occurred because of the negligent riding of the

deceased and it was the scooter that hit on the bus. In a case where

two vehicles move in opposite direction and hit against, it cannot

be ascertained as to which vehicle hit the other. Then what is

possible is to examine whether the vehicles were keeping their

side. It is not disputed that if the revision petitioner was keeping

his side, he would not have driven to the eastern side. He violated

the rule to keep left . If the road rules are given regard, the

revision petitioner would not have driven to the wrong side and hit

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against the deceased who was riding through his side. The

revision petitioner also argued that the evidence of PW1 would

show that after hitting, the scooter as well as the riders were

thrown to a little distance and if the spot of occurrence is shown at

the place where the scooter and riders fell down, the spot where the

vehicles hit as reported in Ext.P2 is not correct. Having gone

through the evidence of PW6, the attester of Ext.P2 and PW10,

who prepared the scene mahazer, I find that in fact the accident

occurred at the eastern side of the road though there may be chance

of minor variation. The courts below had correctly believed the

spot of occurrence. Even if it is assumed that the scooter might

have been thrown to a little distance there is no material to come to

a conclusion that bus was at its proper side, that is on the western

side. The learned counsel also pointed out that PW1 had stated

that a vehicle was kept parked infront of the scooter ridden by the

deceased. According to the learned counsel, since there is no case

that the bus hit on the parking vehicle, it is an indication that the

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accident might not be as alleged by the prosecution, but it might

be due to the scooter hitting on the bus. That argument is also

devoid of any merit. There is nothing on record to show that the

vehicle which was parked just ahead of the spot was in the tarred

road so that bus might hit on that vehicle before it hit on the

scooter ridden by the deceased. In the above circumstances I find

that the courts below had correctly determined the spot of

occurrence at the eastern side of the road. The spot of occurrence

would clearly indicate the negligence of the revision petitioner.

8. The death of the rider was spoken by PW1. Ext.P5

inquest report as well as Ext.P9 Post mortem report coupled with

the evidence of PW11 would show that the rider of the scooter died

because of the angle iron of the bus which was marked as MO1

pierced at his chest. The cause of death is not at all disputed. So

the courts below had correctly arrived a conclusion that the death

of Saseendran is due to the negligent driving of the bus by the

revision petitioner. There is little material to come to a conclusion

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that the deceased had contributed any negligence to cause the

accident.

9. Ext.P2 does not disclose any tyre mark in the spot. It

would indicate that the revision petitioner had not even applied the

break to avoid the hit on the scooter. If he had been cautious he

ought to have driven the bus along the left side of the road ie.

Western side of the road. Even if it is assumed that the scooter was

driven a little towards the western half of the road, the revision

petitioner could have avoided the accident by applying the break.

But there is nothing to show that the revision petitioner applied the

break. All these materials reveals the negligence on the part of the

revision petitioner.

10. Offence u/s.337 IPC was alleged against the revision

petitioner with a plea that PW1 also sustained injury. But regarding

the injury sustained to the PW1, there is no evidence. So the

offence u/s.337 is not established. But, offence u/s. 279 and 304A

IPC are established. I find no error committed by the courts below

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in arriving at a conclusion of guilty for offence u/s. 279 and 304A

IPC. Whereas the revision petitioner is entitled to an order of

acquittal for offence u/s.337 of IPC.

11. According to the learned counsel for the revision

petitioner the sentence awarded is very harsh and that the lower

court had given maximum sentence. Though the sentence awarded

by the trial court and confirmed by the appellate court cannot be

termed as harsh, taking note of the entire facts and circumstances

I find that imposition of rigorous imprisonment for 18 months and

a fine of Rs. 5,000/- u/s.304A would meet the ends of justice. No

separate sentence u/s.279 is warranted.

In the result the revision petition is allowed in part. The

conviction for offence u/s.279 and 304(A) is confirmed. The

conviction for offence u/s.337 IPC is set aside and for that

offence, the revision petitioner is acquitted. For offence u/s. 304A

IPC the revision petitioner shall undergo rigorous imprisonment

for a period of 18 months and a fine of Rs. 5,000/-. In default of

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payment of fine the revision petitioner shall undergo simple

imprisonment for a further period of three months. If the fine

amount is realized, the same shall be paid to PW1 as compensation.

While setting aside the sentence awarded for offence u/s.279 IPC,

there would be no separate sentence for offence u/s 279 IPC.

P.S. GOPINATHAN
JUDGE

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