{"id":216888,"date":"2008-02-07T00:00:00","date_gmt":"2008-02-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aboobacker-vs-state-of-kerala-represented-by-the-on-7-february-2008"},"modified":"2014-12-05T07:23:44","modified_gmt":"2014-12-05T01:53:44","slug":"aboobacker-vs-state-of-kerala-represented-by-the-on-7-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aboobacker-vs-state-of-kerala-represented-by-the-on-7-february-2008","title":{"rendered":"Aboobacker vs State Of Kerala Represented By The on 7 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Aboobacker vs State Of Kerala Represented By The on 7 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl Rev Pet No. 96 of 2008()\n\n\n1. ABOOBACKER, S\/O.MUHAMMAD,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.LALJI P.THOMAS\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice R.BASANT\n\n Dated :07\/02\/2008\n\n O R D E R\n                                  R.BASANT, J\n\n                               ----------------------\n\n                            Crl.R.P.No.96 of 2008\n\n                         ----------------------------------------\n\n               Dated this the   7th day of  February 2008\n\n\n                                    O R D E R\n<\/pre>\n
      This   revision  petition   is   directed   against   a   concurrent<\/p>\n
verdict   of   guilty,   conviction   and   sentence   in   a   prosecution   for<\/p>\n
offences   under   Sections   279,   338   and   304   (A)   I.P.C.    The<\/p>\n
petitioner now faces a sentence of S.I for a period of six months,<\/p>\n
one year and one year respectively for the said offences.   There<\/p>\n
is   a   further   direction   to   pay   an   amount   of   Rs.5,000\/-   as   fine<\/p>\n
under Section 304A I.P.C.  Out of the fine amount, an amount of<\/p>\n
Rs.2,000\/-   was   directed   to   be   paid   to   PW1   as   compensation<\/p>\n
under Section 357(1) Cr.P.C.\n<\/p>\n<\/p>\n
      2.     The   crux   of   the   allegations   against   the   petitioner   is<\/p>\n
that   he,   on   30\/09\/2004,   at   2   p.m   was  the   driver   of   a   K.S.R.T.C<\/p>\n
bus   No.KL   154907.     He   drove   the   said   vehicle   in   a   rash   and<\/p>\n
negligent manner at an excessive speed endangering human life<\/p>\n
through the KSRTC bus stand situated at Batheri.  As a result of<\/p>\n
such   rashness,   negligence   and   excessive   speed,   the   bus   which<\/p>\n
was to be parked in the bus bay of the K.S.R.T.C. bus stand went<\/p>\n
beyond   the   way   and   stopped   ultimately   when   it   hit   against   the<\/p>\n
wall.  One person – PW1 suffered grievous hurt and another – one<\/p>\n
Crl.R.P.No.96\/08                      2<\/span><\/p>\n
Subair  succumbed to  his   injuries.    The  F.I.S Ext.P6   was  lodged<\/p>\n
by   an   eye   witness   –   PW12,   who   was   present   along   with   the<\/p>\n
deceased.     Ext.P6(a)   F.I.R   was   registered.     Investigation   was<\/p>\n
completed and final report was filed by PW18.<\/p>\n
      3.     Cognizance was taken by the learned Magistrate.  The<\/p>\n
petitioner   denied   the   allegations   levelled   against   him.<\/p>\n
Thereupon   the   prosecution   examined   PWs   1   to   18   and   proved<\/p>\n
Ext.P1 to P7.   PW1 is the injured.   PW2 is her husband,   an eye<\/p>\n
witness, PW3 is the conductor of another K.S.R.T.C bus.  He also<\/p>\n
claims to be an eye witness.   PW4, another alleged eye witness<\/p>\n
turned hostile  to the  prosecution  completely.    PWs 5  and 6  are<\/p>\n
attestors   to  the  scene   mahazer   Ext.P1.    PW7  is  the   doctor who<\/p>\n
examined   PW1   and   issued   Ext.P2   and   PW11   is   the   doctor   who<\/p>\n
treated her   and  issued  Ext.P5 discharge certificate.    PW8 is  an<\/p>\n
attestor   to   Ext.P3   inquest   report.     PW10   is   the   doctor   who<\/p>\n
conducted   the   postmortem   examination   of   the   body   of   the<\/p>\n
deceased and issued Ext.P4 postmortem certificate.   PW9 is the<\/p>\n
Vehicle   Inspector   of   the   KSRTC   bus   and   he   was   examined   to<\/p>\n
prove that the petitioner was the driver to whom the vehicle was<\/p>\n
entrusted on the relevant date.   PW12, the informant, claims to<\/p>\n
be   an   eye   witness   in   Ext.P6   F.I.S;   but   he   turned   hostile<\/p>\n
Crl.R.P.No.96\/08                         3<\/span><\/p>\n
completely to the  prosecution.   PW14  is yet another  attestor to<\/p>\n
Ext.P3 inquest report.  PW16 is the Motor Vehicle Inspector who<\/p>\n
inspected   the   vehicle   driven   by   the   accused   and   issued   Ext.P7<\/p>\n
inspection   report.     PW17   is   the   Controlling   Inspector   who<\/p>\n
allegedly   produced   the   vehicle   documents   in   respect   of   the<\/p>\n
vehicle to PW18 investigating officer.  Those documents have not<\/p>\n
been marked before  court.   PWs 15 and  18  are    police  officials<\/p>\n
who   have   various   roles   to   play   in   the   registration   of   the   crime<\/p>\n
and in the filing of the charge sheet.\n<\/p>\n<\/p>\n
      4.     The accused, in the course of cross-examination of the<\/p>\n
prosecution   witnesses   and   when   examined   under   Section   313<\/p>\n
Cr.P.C,   denied   all   circumstances   which   appeared   in   evidence<\/p>\n
and which were put to him.  He denied that he was the driver of<\/p>\n
the  vehicle  at  the  relevant time.    He denied  the  allegation   that<\/p>\n
the accident occurred on account of any rashness or negligence<\/p>\n
on his part.  No defence witnesses were examined.<\/p>\n
      5.     The courts below concurrently came to the conclusion<\/p>\n
that it was absolutely safe to place reliance on the oral evidence<\/p>\n
of PWs 1 to 3 and PWs 9 and 17 to come to the conclusion that<\/p>\n
the petitioner was the driver of the vehicle at the relevant time<\/p>\n
and   that   the   accident   had   taken   place   solely   on   account   of<\/p>\n
Crl.R.P.No.96\/08                         4<\/span><\/p>\n
rashness   and   negligence   of   the   petitioner.     Accordingly   the<\/p>\n
courts   below   proceeded   to   pass   the   impugned   concurrent<\/p>\n
judgments.\n<\/p>\n<\/p>\n
      6.     The   petitioner   claims   to   be   aggrieved   by   the<\/p>\n
impugned concurrent verdict of guilty, conviction and sentence.<\/p>\n
Called   upon   to   explain   the   nature   of     challenge   which   the<\/p>\n
petitioner   wants   to   mount   against   the   impugned   concurrent<\/p>\n
judgments, the learned counsel for the petitioner advances three<\/p>\n
specific contentions.\n<\/p>\n<\/p>\n
      7.     The   learned   counsel   for   the   petitioner   first   of   all<\/p>\n
contends that the prosecution has not succeeded in establishing<\/p>\n
the   identity   of   the   driver   of   the   vehicle.     The   learned   counsel<\/p>\n
placing reliance on binding precedents urges that the identity of<\/p>\n
the   offender   is   as   important   an   ingredient   to   be   proved   in   a<\/p>\n
traffic offence case as in any other case.             The   courts   below<\/p>\n
erred   in   not   giving   due   importance   and   significance   to   the<\/p>\n
ascertainment of the identity of the offender.<\/p>\n
      8.     I  have   considered  this  contention  in  detail.   PW1, an<\/p>\n
injured   and   her   husband   PW2   who   were   without   any   dispute<\/p>\n
present in the bus stand at the relevant time had spoken that the<\/p>\n
petitioner   was   the   driver   of   the   vehicle   at   the   relevant   time.<\/p>\n
Crl.R.P.No.96\/08                          5<\/span><\/p>\n
PW3,   a   conductor   of   another   K.S.R.T.C   bus   who   was   also<\/p>\n
allegedly   present   at   the   scene   of   the   crime   had   identified   the<\/p>\n
petitioner to be the driver of the vehicle.   PWs 4 and 12 had, of<\/p>\n
course, turned hostile and their evidence offers no specific help<\/p>\n
for   the   purpose   of   identification   of   the   accused.     The   courts<\/p>\n
below further relied on the evidence of PWs 9 and 17 to support<\/p>\n
the   evidence   of   PWs   1   to   3   about   the   identity   of   the   offender.<\/p>\n
PW9, the Vehicle Inspector and PW17, the Controlling Inspector,<\/p>\n
though   not   eye  witnesses  to   the  occurrence,   made   specific  and<\/p>\n
categoric  statement  that the petitioner  was the  driver  to whom<\/p>\n
the vehicle was entrusted for driving on that day.  PW17 claimed<\/p>\n
that the relevant documents to show that fact were also handed<\/p>\n
over to the investigating officer ;  but for obscure reasons, those<\/p>\n
documents have not been produced before court.<\/p>\n
       9.     A   criminal   trial   court   cannot   deteriorate   into   a   mere<\/p>\n
effort to identify whether the investigating officer  has played his<\/p>\n
part   properly   and   to   perfection.     The   criminal   trial   also   is   an<\/p>\n
endeavour   on   the   part   of   the   system   to   ascertain   the   truth.<\/p>\n
Merely because of inadequacy in the conduct of the prosecution<\/p>\n
or   the   investigating   officer,   the   prosecution   case   cannot   fall.<\/p>\n
Such   vice   must   generate   reasonable   doubt   in   the   mind   of   the<\/p>\n
Crl.R.P.No.96\/08                          6<\/span><\/p>\n
court. The evidence of PWs 1 to 3 established beyond the pale of<\/p>\n
doubt   or   controversy   that   the   petitioner   was   the   driver   of   the<\/p>\n
vehicle   at   the   relevant   time.     This   evidence   of   PWs   1   to   3   is<\/p>\n
further supported by the oral evidence of PWs 9 and 17 though<\/p>\n
they   have   not   produced   the   relevant   documents   which   would<\/p>\n
have sealed the fate of the controversy which is attempted to be<\/p>\n
raked up now.  That inadequacy, according to me, cannot deliver<\/p>\n
any   advantage   to   the   accused.     The   finding   that   the   petitioner<\/p>\n
was the driver of the vehicle at the relevant time is according to<\/p>\n
me, absolutely justified and the same does not warrant revisional<\/p>\n
interference.\n<\/p>\n<\/p>\n
       10.    Secondly, the learned counsel for the petitioner points<\/p>\n
out   that   the   evidence   of   PWs   1   to   3   does   not   justify   the<\/p>\n
conclusion   that   rashness   or   negligence   of   the   driver   of   the<\/p>\n
K.S.R.T.C bus was responsible for causing the accident.  On this<\/p>\n
aspect again, we have to rely on the evidence of PWs 1 to 3 as<\/p>\n
also the admitted earlier statement given by PW12 in Ext.P6.  In<\/p>\n
view   of   the   hostility   of   PW12,   Ext.P6   cannot   be   reckoned   as<\/p>\n
substantive evidence.   I need only take note of the fact that the<\/p>\n
oral evidence of PWs 1 to 3 get support and inspiration from the<\/p>\n
contents   of   the   prompt   F.I.S   Ext.P6   lodged   by   PW12   who<\/p>\n
Crl.R.P.No.96\/08                          7<\/span><\/p>\n
admitted that earlier statement of his.\n<\/p>\n<\/p>\n
       11.    The K.S.R.T.C bus, which must have been taken to the<\/p>\n
bay and   stopped  there   to  enable   passengers  to   embark   did   not<\/p>\n
stop at the bay.  It went beyond the bay, entered the area where<\/p>\n
passengers   sit   and   then   stopped   ultimately   when   it   hit   against<\/p>\n
the wall of the K.S.R.T.C. bus stand.  The deceased was caught in<\/p>\n
between and the victims were knocked down by the bus resulting<\/p>\n
in   injuries   to   them.     The   evidence   of   PWs   1   to   3   as   also   the<\/p>\n
contents   of   the   scene   mahazer   Ext.P1   declares   eloquently   the<\/p>\n
cause of the accident and the negligence\/rashness of the driver<\/p>\n
of the  K.S.R.T.C bus.    It would be puerile  and perverse for any<\/p>\n
prudent mind with the available evidence to jump to a conclusion<\/p>\n
that the rashness and negligence have not been established.<\/p>\n
       12.    The   learned   counsel   for   the   petitioner   attempts   to<\/p>\n
advance an argument that, at any rate, it must be concluded that<\/p>\n
mechanical  defect of the vehicle must have led  to the accident.<\/p>\n
In   this   context,   we   have   the   oral   evidence   of   PW16,   Motor<\/p>\n
Vehicle  Inspector  who had   inspected  the  vehicle  as also  Ext.P7<\/p>\n
inspection   report   submitted   by   him.     There   is   absolutely   no<\/p>\n
scintilla   of   material   to     even   remotely   suggest   that   the   vehicle<\/p>\n
had   any   mechanical   defect   as   to   justify   the   hypothetical<\/p>\n
Crl.R.P.No.96\/08                        8<\/span><\/p>\n
contention urged that such failure of the break system must have<\/p>\n
caused   the   accident   and   not   the   negligence   of   the   driver,<\/p>\n
whoever he be.  There is absolutely nothing available in evidence<\/p>\n
to suggest that the vehicle had any mechanical defect.<\/p>\n
      13.    The  learned  counsel  for  the  petitioner  relying  on  the<\/p>\n
incongruity between the evidence of two witnesses as to whether<\/p>\n
the   vehicle   was   coming   from   Mysore   or   from   the   workshop<\/p>\n
advances   a   contention   that   the   vehicle   must   have   had   a<\/p>\n
mechanical defect and the  vehicle must have been taken  to the<\/p>\n
workshop   and   the   theory   of   mechanical   defect   is   indicated   by<\/p>\n
such   evidence   of   one   of   the   witnesses   that   the   vehicle   was<\/p>\n
coming   from   the   workshop.     I   am   unable   to   accept   this<\/p>\n
contention   at  all.    The  evidence   of  PW16  and  Ext.P7  knock the<\/p>\n
bottom   out   of   the   theory   that   the   vehicle   was   having   any<\/p>\n
mechanical defect.\n<\/p>\n<\/p>\n
      14.    I   am   in   these   circumstances   satisfied   that   the<\/p>\n
concurrent conclusions of the courts below that the accident had<\/p>\n
taken place on account of the rashness\/negligence of the driver<\/p>\n
of   the   K.S.R.T.C   bus   is   correct   and   the   same   does   not   warrant<\/p>\n
any interference in revision.\n<\/p>\n<\/p>\n
      15.    The   learned   counsel   for   the   petitioner   then   raises   a<\/p>\n
Crl.R.P.No.96\/08                          9<\/span><\/p>\n
contention that at any rate the offence under Section 279 I.P.C is<\/p>\n
not made out.   The crux of the contention is that under Section<\/p>\n
279 I.P.C, driving must have been on a public way.  The accident<\/p>\n
in   this   case   took   place   not   on   any   public   way;   but   in   the<\/p>\n
K.S.R.T.C.   bus   stand.     The   same   cannot   be   reckoned   as   public<\/p>\n
way.     Therefore,   the   conviction   under   Section   279   I.P.C   is<\/p>\n
unjustified, it is urged.\n<\/p>\n<\/p>\n
       16.    I am unable to accept this contention.  The expression<\/p>\n
public way used in Section 279 I.P.C must yield to a reasonable<\/p>\n
and rational  understanding.   Members of the public  as also the<\/p>\n
buses   coming   into   the   bus   station   have   a   right   to   use   the   said<\/p>\n
way.     Though   inside   the   K.S.R.T.C.   bus   station,   the   way   inside<\/p>\n
the bus station cannot be said to be anything other than a public<\/p>\n
way   for   the   purpose   of   Section   279   I.P.C.     Public   way   can   be<\/p>\n
understood only to mean way in which the public have a right to<\/p>\n
use.   It cannot for a moment be urged that the tracks inside the<\/p>\n
bus   station   in   which   buses   are   plied   and   passengers   have   to<\/p>\n
frequent   are   not   public   ways   as   to   exclude   the   applicability   of<\/p>\n
Section 279 I.P.C.  The said contention cannot also succeed.<\/p>\n
       17.    Lastly   it   is   contended   that   the   sentence   imposed   is<\/p>\n
excessive.     The   petitioner   is   a   K.S.R.T.C   bus   driver   and   a<\/p>\n
Crl.R.P.No.96\/08                        10<\/span><\/p>\n
conviction   and   sentence   imposed   on   him   would   entail   loss   of<\/p>\n
employment for him, it is urged.\n<\/p>\n<\/p>\n
      18.    I   have   considered   the   nature   of   the   allegations   and<\/p>\n
the proof that has been offered in  support of the allegations.   I<\/p>\n
am   unable   to   agree   that   in   the   facts   and   circumstances   of   this<\/p>\n
case   a   deterrent   substantive   sentence   of   imprisonment   can   be<\/p>\n
avoided.     The   nature   of   the   allegations   and   the   nature   of   the<\/p>\n
evidence, that has been tendered do unmistakably lead me to the<\/p>\n
conclusion   that   a   deterrent   substantive   sentence   of<\/p>\n
imprisonment is inevitable in the facts and circumstances of this<\/p>\n
case;   but  I  take note  of the  fact that deterrence  in  a case like<\/p>\n
this does not necessarily depend on the length of the period that<\/p>\n
the offender spends behind the bars.  Leniency can be shown on<\/p>\n
the   question   of   sentence   and   the   length   of   the   period   of<\/p>\n
imprisonment can be reduced, I am satisfied.<\/p>\n
      19.    In the result:\n<\/p>\n<\/p>\n
      a)     This Crl.R.P is allowed in part.\n\n\n      b)     The   verdict   of   guilty,   conviction   under   Section   279,\n\n\n388 and 304A I.P.C are upheld.\n\n\n      c)     But   the   sentence   imposed   on   the   petitioner   for   the\n\n\n<\/pre>\n
said offences is reduced to S.I for a period of three months, four<\/p>\n
Crl.R.P.No.96\/08                         11<\/span><\/p>\n
months   and   six   months   respectively.     The   sentence   shall   run<\/p>\n
concurrently.\n<\/p>\n<\/p>\n
       d)     The direction to pay a fine of Rs.5,000\/- under Section<\/p>\n
304A   I.P.C   and   in   default   to   undergo   S.I   for   a   period   of   three<\/p>\n
months is also upheld.\n<\/p>\n<\/p>\n
       20.    The petitioner shall now surrender before the learned<\/p>\n
Magistrate   for   execution   of   the   modified   sentence   hereby<\/p>\n
imposed   on   or   before   31\/3\/2008.     Till   that   date,   the   sentence<\/p>\n
shall not be executed.  If the petitioner does not so appear before<\/p>\n
the   learned   Magistrate   on   or   before   31\/03\/2008,   the   learned<\/p>\n
Magistrate   shall   thereafter   proceed   to   execute   the   modified<\/p>\n
sentence hereby imposed.\n<\/p>\n<\/p>\n
                                                        (R.BASANT, JUDGE)<\/p>\n
jsr<\/p>\n
Crl.R.P.No.96\/08    12<\/span><\/p>\n
Crl.R.P.No.96\/08    13<\/span><\/p>\n
                                        R.BASANT, J<\/p>\n
                          Crl.M.A.Nos.21 & 65 of 2008<\/p>\n
                             in Crl.R.P.No.765 of 2007<\/p>\n
                                              ORDER<\/p>\n
                          17th  DAY OF JANUARY 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Aboobacker vs State Of Kerala Represented By The on 7 February, 2008 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 […]<\/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-216888","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAboobacker vs State Of Kerala Represented By The on 7 February, 2008 - 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\/aboobacker-vs-state-of-kerala-represented-by-the-on-7-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aboobacker vs State Of Kerala Represented By The on 7 February, 2008 - 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