{"id":207422,"date":"2009-04-03T00:00:00","date_gmt":"2009-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asokan-vs-state-of-kerala-on-3-april-2009"},"modified":"2015-07-20T22:19:17","modified_gmt":"2015-07-20T16:49:17","slug":"asokan-vs-state-of-kerala-on-3-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asokan-vs-state-of-kerala-on-3-april-2009","title":{"rendered":"Asokan vs State Of Kerala on 3 April, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Asokan vs State Of Kerala on 3 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 98 of 2000()\n\n\n\n1. ASOKAN\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.NAGARAJ NARAYANAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :03\/04\/2009\n\n O R D E R\n                   S.S. SATHEESACHANDRAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Crl.R.P.No.98 of 2000\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Dated: 3rd April, 2009\n\n                                   ORDER\n<\/pre>\n
      Challenge in the revision is against the concurrent verdict of<\/p>\n
guilt rendered against the revision petitioner\/accused for the offences<\/p>\n
punishable under Sections 279, 337 and 304 I.P.C. He was<\/p>\n
prosecuted for the aforesaid offences along with Section 134 (a) and<\/p>\n
(b) of the M.V.Act. He pleaded not guilty to the offence. The learned<\/p>\n
Magistrate, after trial, found him guilty of the offences under Sections<\/p>\n
279, 337 and 304 I.P.C. and convicted him thereunder sentencing<\/p>\n
him to undergo rigorous imprisonment for three months under<\/p>\n
Section 279 I.P.C., six months under Section 337 I.P.C. and one year<\/p>\n
under Section 304 I.P.C. directing him to undergo the sentences<\/p>\n
concurrently. He was not found guilty of the offences under Section<\/p>\n
134 (a) and (b) of the M.V.Act and acquitted of such offences. In<\/p>\n
appeal, the learned Sessions Judge confirmed the conviction and also<\/p>\n
the sentence without any modification. Aggrieved by the conviction<\/p>\n
and sentence, questioning its legality, propriety and correctness, he<\/p>\n
has preferred this revision.\n<\/p>\n
      2. The gist of the prosecution case is that on 21.3.1992 the<\/p>\n
accused drove a tourist bus, namely, A.K.M.bus bearing Reg.No.KEV<\/p>\n
Crl.R.P.No.98\/2000                – 2 –<\/span><\/p>\n
2121, from west to east, through Paravoor-Parippally public road in a<\/p>\n
rash and negligent manner at an enormous speed endangering<\/p>\n
human life. When the vehicle reached Puthenkulam at about 1.45<\/p>\n
P.M., in view of the rash and negligent driving of the vehicle by the<\/p>\n
accused, it went to the extreme left side of the road, hit against an<\/p>\n
electric post situate on the northern side, far away from the tarred<\/p>\n
portion of the road, and a passenger in the vehicle travelling in the<\/p>\n
foot board sustained fatal injuries and was thrown out of the bus,<\/p>\n
and he succumbed to the injuries sustained instantaneously at the<\/p>\n
spot. Two other passengers sitting on the left side of the bus also<\/p>\n
sustained fatal injuries on account of the collision of the bus with the<\/p>\n
electric post. They too after being taken to hospital on account of the<\/p>\n
fatal injuries sustained, breathed their last. Some other passengers<\/p>\n
travelling in the bus too sustained injuries. A crime was registered<\/p>\n
suo motu by P.W.15 who then was the S.I.of Police, Paravoor after he<\/p>\n
revealed the spot on getting information of the occurrence. The<\/p>\n
investigation of the trial was taken over and conducted by P.W.16,<\/p>\n
the then C.I. of Police, Paravoor. During the course of the<\/p>\n
investigation, the accused was arrested and later enlarged on bail.<\/p>\n
After completing the investigation, P.W.16 laid the charge indicting<\/p>\n
Crl.R.P.No.98\/2000               – 3 –<\/span><\/p>\n
the accused for the offences punishable under Sections 279, 337 and<\/p>\n
304 of the I.P.C. and Section 134 (a) and (b) of the M.V.Act.<\/p>\n
      3. The accused, on appearance before the court, pleaded not<\/p>\n
guilty when the offences were made known. Prosecution examined<\/p>\n
P.Ws.1 to 16 and got marked Exts.P1 to P14 to prove his guilt. The<\/p>\n
accused during the course of the examination of the prosecution<\/p>\n
witnesses and also when questioned under Section 313 Cr.P.C.<\/p>\n
maintaining his innocence contended he was not the driver of the bus<\/p>\n
involved in the occurrence. Though such a defence was canvassed, no<\/p>\n
defence evidence was adduced.\n<\/p>\n
      4. The learned Magistrate, after appreciating the materials,<\/p>\n
found that the accused was the driver of the offending bus involved in<\/p>\n
the occurrence which resulted death of three persons and also<\/p>\n
injuries to several others and the occurrence arose on account of his<\/p>\n
culpable rash and negligent driving of the bus at enormous speed<\/p>\n
endangering human life. The accused was found guilty of the offences<\/p>\n
under Sections 279, 337 and 304 I.P.C. and convicted and sentenced<\/p>\n
of those offences as indicated earlier. The learned Sessions Judge,<\/p>\n
after reappreciation of the evidence, in appeal, confirmed the<\/p>\n
conviction, and upheld the sentence without modification.<\/p>\n
Crl.R.P.No.98\/2000                – 4 –<\/span><\/p>\n
      5. I heard the learned counsel for the accused and also the<\/p>\n
Public Prosecutor.\n<\/p>\n
      6. Learned counsel for the accused assailed the conviction<\/p>\n
contending there was absolute paucity of evidence establishing the<\/p>\n
identity of the accused as the driver of the bus involved in the<\/p>\n
occurrence. Other than the evidence of P.W.12, a headload worker<\/p>\n
who claimed to be a passenger in the bus, there was nothing on the<\/p>\n
materials produced by the prosecution to fix the accused as the driver<\/p>\n
of that bus. P.W.12 who identified the accused, according to the<\/p>\n
learned counsel, carried out his engagement as a headload worker at<\/p>\n
a place in Kallambalam far away from the place of occurrence and as<\/p>\n
such his evidence should not have been received by the court to<\/p>\n
establish that the accused was the driver of the bus. It has also come<\/p>\n
out during the cross examination of P.W.12 that after the occurrence<\/p>\n
he saw the accused for the first time before the court. Relying on<\/p>\n
Vijayan v. State of Kerala<\/a> [1999(1) KLT 760(SC) ], it is contended<\/p>\n
by the learned counsel, such identification made by the accused<\/p>\n
should not have been relied on to hold that the accused was the<\/p>\n
driver of the bus involved in the occurrence. No identification parade<\/p>\n
was conducted in the case, and so much so, the identification of the<\/p>\n
Crl.R.P.No.98\/2000                – 5 –<\/span><\/p>\n
accused by a solitary witness that too long after the occurrence<\/p>\n
before the court should not have been accepted, submits the learned<\/p>\n
counsel relying on Raju v. State of Maharashtra [(1998) 1 S.C.C.<\/p>\n
169]. Over and above disputing the identity of the accused as the bus<\/p>\n
driver, the learned counsel contended that there was nothing on the<\/p>\n
materials to conclude that the driver had driven the vehicle in a rash<\/p>\n
and negligent manner endangering human life and that on account of<\/p>\n
his reckless driving, the accident occurred. Absence of tyre marks at<\/p>\n
the sport, according to the counsel, is indicative that the vehicle was<\/p>\n
not driven at a high speed. In the vehicle, a marriage party travelled<\/p>\n
and they were returning after attending a marriage with a car just<\/p>\n
behind with a videographer, taking pictures with his video. Some of<\/p>\n
the passengers travelling in the foot board get their pictures in the<\/p>\n
video stretched out of the bus their person and because of their<\/p>\n
negligence, one among them hit against the electric post and the<\/p>\n
accident occurred for which the driver of the bus could not be held<\/p>\n
culpable, is the submission of the learned counsel. At any rate, on the<\/p>\n
materials produced, the prosecution has not succeeded in proving<\/p>\n
culpable criminal negligence on the part of the driver and also that his<\/p>\n
rash and negligent driving had resulted the accident. So much so, it is<\/p>\n
Crl.R.P.No.98\/2000                – 6 –<\/span><\/p>\n
submitted that the conviction founded against the accused for the<\/p>\n
offences under Sections 279, 337 and 304 I.P.C. is liable to be<\/p>\n
interfered, allowing the revision.\n<\/p>\n
       7.   I have perused the records of the case giving due<\/p>\n
consideration to the submission of the counsel. Perusing the records,<\/p>\n
it is seen, the prosecution had relied on the evidence of P.W.11, the<\/p>\n
owner of the bus and also P.W.12, a passenger to prove that the<\/p>\n
accused drove the bus as its driver when the accident occurred.<\/p>\n
P.W.11, the owner of the bus had given evidence before the court<\/p>\n
that the vehicle was taken in the morning by the accused. When a<\/p>\n
suggestive question was put to him that the vehicle was not driven by<\/p>\n
the accused on the date of occurrence and that he had spoken to the<\/p>\n
contrary in view of his enmity towards the accused, the witness<\/p>\n
asserted it was the accused who drove that vehicle. Nothing has been<\/p>\n
brought out during the cross examination of P.W.11 to hold that he<\/p>\n
had any axe to grind against the accused other than a suggestion<\/p>\n
that his assertion before the court that the accused was the driver of<\/p>\n
the bus on account of previous enmity. What was the reason thereof<\/p>\n
has not been shown. Even when questioned under Section 313<\/p>\n
Cr.P.C. the accused had not offered any explanation to show that the<\/p>\n
Crl.R.P.No.98\/2000               – 7 –<\/span><\/p>\n
owner had any grudge towards him to state falsely that he was the<\/p>\n
driver of the bus. The best person to speak who drove the vehicle,<\/p>\n
needless to point out, is the owner of the bus. It is too much to<\/p>\n
believe that the owner would make a false assertion that the accused<\/p>\n
was the driver if actually he was not so and, further, to perjure<\/p>\n
against him before a court of law. I am not relying upon Exts.P7 and<\/p>\n
P8 which are purported to have been received from the owner during<\/p>\n
the investigation of the crime, wherein it is stated that the owner had<\/p>\n
given the particulars of the accused as the driver since the collection<\/p>\n
of such materials though permitted by the M.V.Act, cannot be used<\/p>\n
as evidence in a criminal trial. Section 161 of the Cr.P.C. prohibits<\/p>\n
getting of a signed statement from a witness and as such Ext.P8<\/p>\n
statement purported to have been collected from the owner to fix the<\/p>\n
identity of the accused as driver naturally should be eschewed from<\/p>\n
consideration. Leaving aside Exts.P7 and P8, the evidence of the<\/p>\n
owner before the court that the accused was the driver of the bus,<\/p>\n
which is found reliable, is more than sufficient to hold so, and the<\/p>\n
denial thereof canvassed by the accused is unworthy of any merit.<\/p>\n
P.W.12, a passenger in the bus had also given evidence that the bus<\/p>\n
was driven by none other than the accused. He gave graphic<\/p>\n
Crl.R.P.No.98\/2000                – 8 –<\/span><\/p>\n
description as to how the occurrence took place. While the bus was<\/p>\n
heading its way, seeing a dike in the road for laying pipe, the driver<\/p>\n
recklessly severred the vehicle to the left, and it went only the tarred<\/p>\n
portion and collided with a post situate on the northern side of the<\/p>\n
road. The bus was moving at enormous speed and it could be stopped<\/p>\n
only after covering some distance is evident from the fact that the<\/p>\n
driver could not control the vehicle even at the time when it collided<\/p>\n
against the post. P.W.12 spoke not only about the reckless driving of<\/p>\n
the vehicle by the driver but also asserted before court that it was<\/p>\n
driven by the accused. He also stated that he knew the accused from<\/p>\n
six\/seven years earlier to the occurrence and so much so, this was a<\/p>\n
case where no identification parade was called for. His assertion that<\/p>\n
he knew the accused, it is seen, was found reliable, trustworthy and<\/p>\n
convincing to the learned Magistrate who had the opportunity to<\/p>\n
watch the demeanour and deportment of the witness while giving<\/p>\n
evidence. The learned Sessions Judge who reappreciated the<\/p>\n
evidence in appeal also found his testimony reliable and acceptable.<\/p>\n
After going through his evidence, I find no reason to take a different<\/p>\n
view. The evidence of P.W.12 leave no room for any doubt that it was<\/p>\n
the accused who drove the vehicle involved in the accident and the<\/p>\n
Crl.R.P.No.98\/2000                 – 9 –<\/span><\/p>\n
occurrence took place due to the rash and negligent driving of the<\/p>\n
bus by its driver. The features noticed by P.W.15, the S.I. of Police at<\/p>\n
the spot while he prepared inquest over the deadbody of the<\/p>\n
passenger who was thrown out of the bus and died at the spot,<\/p>\n
clearly spell out that the left side of the bus hit against the electric<\/p>\n
post. The damages caused to the electric post and the materials<\/p>\n
recovered from the bus etc.       as stated in column 8 and 9 in the<\/p>\n
inquest report of P.W.6 amply demonstrate that the vehicle was<\/p>\n
driven with such recklessness and having no regard for the safety of<\/p>\n
the passengers and public. The proved facts and circumstances<\/p>\n
involved in the case as borne out by the materials lead to the<\/p>\n
irresistible conclusion that the accused was guilty of the offences<\/p>\n
under Sections 279 and 337 and 304 of the I.P.C. as found by the<\/p>\n
two courts below and the findings of the courts below deserve only<\/p>\n
to be upheld, and I do so.\n<\/p>\n
         8. The learned counsel has taken exception that            the<\/p>\n
benevolent provisions of the Probation of Offenders Act had not been<\/p>\n
extended to the accused and no reason was stated for its non-<\/p>\n
applicability. Having regard to the proved facts and circumstances of<\/p>\n
the case where three persons lost their lives in the prime of their life<\/p>\n
Crl.R.P.No.98\/2000                 – 10 –<\/span><\/p>\n
solely on account of the reckless driving of the bus, in the backdrop<\/p>\n
that motor vehicles on account of culpable criminal negligence and<\/p>\n
rash driving by their drivers causing havoc and destruction of<\/p>\n
families, have turned out to be mechanised killers. I find that this is<\/p>\n
not a fit case which warranted the consideration of the Probation of<\/p>\n
Offenders Act. Punishment imposed against the accused considering<\/p>\n
the gravity of the offences by no stretch of imagination can be<\/p>\n
considered as excessive or unreasonable. No interference with the<\/p>\n
sentence is called for. Revision is dismissed.\n<\/p>\n<\/p>\n
srd                           S.S. SATHEESACHANDRAN, JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-207422","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAsokan vs State Of Kerala on 3 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/asokan-vs-state-of-kerala-on-3-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asokan vs State Of Kerala on 3 April, 2009 - 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