High Court Kerala High Court

Rajeshkumar vs State Of Kerala on 26 September, 2007

Kerala High Court
Rajeshkumar vs State Of Kerala on 26 September, 2007
       

  

  

 
 
  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.
                  -------------------------
                   Crl.R.P.No.491 OF 2000
                  -------------------------
                  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 of

Crl.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