Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 Crl.Rev.Pet.No. 359 of 2002 ( ) ------------------------------- CRA.8/1999 of I ADDL. SESSIONS COURT, ERNAKULAM CC.173/1994 of J.M.F.C.-II, ERNAKULAM REVISION PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------- SURESH KUMAR S/O.PRABHAKARAN, MAZHUVANCHERI VEEDU,ON THE SOUTH OF THE POTTA JUNCTION,POONITHURA DESOM,POONITHURA VILLAGE. BY ADV. SRI.S.NIRMAL KUMAR COMPLAINANT(S)/COMPLAINANT: --------------------------- STATE - REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,CITY TRAFFIC POLICE STATION KOCHI CITY,(CRIME 659 93) REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: das N.K.BALAKRISHNAN, J.
================== Crl.R.P. No. 359 of 2002 ========================= Dated this the 20th day of December, 2012 ORDER The petitioner was held concurrently guilty and convicted of the offence punishable under Sec.279 and 304A of IPC. He was sentenced to S.I for three months and to pay Rs.1,000/- as fine for the offence under Sec.279 of IPC. This revision is directed against the said conviction and sentence.
2. The accident took place on 14.06.1993 at about 3.30PM. The petitioner was the driver of the offending bus. The accident took place near boat jetty junction on the Park Avenue road. The bus was proceeding from south to north. The place of accident is only a few feet away from the traffic island. That traffic island is on the road at or near the Park Avenue road-Boat jetty road. It is stated that it is just a few feet away to the north of the Crl.R.P.No.359/2002 :
2. : traffic island, that the accident took place. The exact accident spot is 4.16 mtrs east to the western edge of the tar road. There was a divider almost along the middle of the road. The total width of the tar road is stated to be 13.6 mtrs. Since the accident took place at about the junction, it is noted that the width of the tar road lying to the west of the offending bus was 6.25 mtrs. The evidence would show that PW3 and the victim boy and also the mother of the victim were standing on the side of the divider to cross the road.
3. According to the prosecution, the accused drove the bus in a rash or negligent manner and thus it hit the injured boy to which he succumbed. Ext.P1 the FIS was given by PW2 the police constable, who was present there. PW1 is the another police constable who also witnessed the incident. After conducting the investigation, the charge sheet was laid against the accused. Crl.R.P.No.359/2002 :
3. :
4. PW1 to PW12 were examined and Exts.P1 to P12 were marked.
5. The court below accepted the evidence given by PW1 to PW3 to hold that the bus was driven by the accused in a rash and negligent manner endangering human life. Since the incident took place at the boat jetty junction which is a very busy area, the petitioner was expected to be doubly cautious, but the accused as the driver of the bus drove the bus in a negligent manner endangering human life and thus hit the boy causing fatal injuries to which he later succumbed. That finding was confirmed by the appellate court.
6. The learned counsel for the petitioner submits that the evidence given by PW3 would clearly show that the mother of the child was holding the hand of the deceased boy but suddenly, the boy wriggled out and ran across the road, and as such, it was impossible for the driver to avert the accident. But the prosecution Crl.R.P.No.359/2002 :
4. : contends that all the three persons including the boy were standing on the divider and that the boy took one or two steps forwards; towards the road and as the bus was driven along the median so carelessly that it thus happened to hit the boy. The evidence would show that the accused was talking loudly with a person behind and laughing, and was not at all diligent in driving the bus. Had he been diligent, he could have noticed the boy standing by the side of the median. The driver should have taken extra care to avert the accident.
7. The learned counsel for the petitioner submits that if the boy had suddenly wriggled out and ran across the road, how can the driver avert the accident. The learned counsel also relies upon the evidence given by DW1 and DW2 in support of the contention that the deceased boy suddenly ran towards the western side and thus the bus happened to hit the boy. It is also argued by the learned counsel that had it not been a case where the Crl.R.P.No.359/2002 :
5. : boy did not wriggle out or ran across the road and if as a matter of fact, the boy was being held by his hands by his mother or any other person, then certainly the bus would have hit the other person (mother or other person) holding the boy by hand. Therefore, according to the learned counsel, it is all the more possible and probable that the boy suddenly wriggled out and ran across without noticing the approaching vehicle. But the courts below placed reliance on the evidence given by the prosecution witnesses that the accused was actually seen engaged in talking looking backwards and laughing while driving and so that itself will show that he had not taken reasonable care and caution to avert the accident. It is also pointed out that the body of the child was actually taken out from the underneath the bus. That shows that the bus had, in fact, proceeded further and that was how the boy happened to be underneath the bus. It is also pointed out that no tyre marks was noted at the place of Crl.R.P.No.359/2002 :
6. : accident which would show that the accused did not apply the break and no attempt was made by him to avoid the accident. Though the accused contended that PW3 is an interested witness, on going through the evidence it was pointed out that PW3 is a disinterested witness. The courts below rightly placed reliance on the evidence given by PW3.
8. PW1 and PW2 the police constables also deposed in line with the case of the prosecution. There was no case for the accused that PW1 and PW2 had any animosity towards the accused. The evidence given by PW1 would show that the accused actually turned his head back and that was why the accused omitted to notice that the deceased boy was standing on the side of the median. That also has been noted as the additional factor to hold that the accused was rash or negligent while driving the bus. On going through the judgments of the courts below, I find that the evidence given by PW1 to Crl.R.P.No.359/2002 :
7. : PW3 does not suffer from any infirmity. Finding of guilt based on the evidence given by them is well justified. Hence, the conviction is to be confirmed.
9. The learned counsel for the petitioner submits that the sentence may be modified, taking note of the fact that the accident took place about ten years back. Considering all the aspects, I find that the sentence is to be slightly modified.
10. In the result, this criminal revision petition is disposed of as stated below: The conviction concurrently entered against the petitioner is confirmed. The petitioner is sentenced to S.I for two months and to pay Rs.2,000/- (Rupees two thousand only) as fine in default to undergo S.I for two months, for the offence under Sec.304A of IPC. Besides, the petitioner is sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) as fine for the offence under Sec.279 of IPC and in default to undergo S.I for one Crl.R.P.No.359/2002 :
8. : month. The petitioner will appear before the Magistrate within one month from today. Sd/- N.K.BALAKRISHNAN, JUDGE das //True copy // PA to Judge