VARGHESE GEORGE v. STATE OF KERALA

K.HEMA, J.-----------------------------------------------Crl.R.P. No. 33 of 1999 -----------------------------------------------Dated this the 25th day of March, 2011.O R D E R The revision petitioner was convicted and sentenced foroffences under Sections 279, 337 and 304-A of IPC. He wassentenced to undergo rigorous imprisonment for one yearunder Section 304-A IPC. He was also sentenced to undergorigorous imprisonment for 3 months for offence under Section279 IPC. No separate sentence was awarded for offence underSection 337 IPC. The driving licence of the accused wasdeclared to be suspended for one year under Section 22 of theMotor Vehicles Act. The sentences were to run concurrently. The said conviction and sentence were confirmed in appeal andthe appeal was dismissed. Hence, this revision. 2. The prosecution case is that the bus which wasallegedly driven in a rash and negligent manner by revisionpetitioner hit against a jeep which was driven by deceasedMuthuswamy, on a public road. Two persons died as a result of [Crl.R.P.33/99]2the injury sustained in the accident and other passengers in thebus were injured. Passengers in the jeep were also injured. Thebus, after hit, dashed against a tree and then went to the mudportion and stopped at 10 metres away. Both the courts belowfound that evidence adduced in this case proves that theaccused had driven the vehicle in a rash and negligent mannerso as to endanger human life and such act resulted in thedeath of two persons and also caused injuries to various others.3. Head. Perused the records. PWs 3, 7, 8 and 9 are theinjured. PW3 was travelling in the jeep involved in the accidentand PWs 7 to 9 were travelling in the bus driven by the revisionpetitioner. PWs.3, 7 and 9 identified the accused. On anevaluation of the evidence adduced by the prosecution, theappellate court rightly held that the injured witnesses PWs. 3and 7 to 9 supported the prosecution and gave a version fullyconsistent with the prosecution case. Their evidence is alsosupported by evidence of certain other hostile witnesses. Boththe courts found that there is nothing to disbelieve the versiongiven by the witnesses who supported the prosecution. On a [Crl.R.P.33/99]3perusal of the record and on reading their evidence, I do notfind any reason to come to a different finding. It cannot also besaid that such findings of facts are perverse.4. Learned counsel appearing for revision petitionercontended that there is no evidence to support the case ofrashness and negligence on the part of the accused in drivingthe vehicle. So, no negligence or rashness can be attributed tothe revision petitioner in causing the incident by driving thebus. It is pointed out that bus cannot be on the wrong side, since as per the scene mahazar, the width of the road was5.30 metres and the jeep was found at 1.52 metres away fromthe western tar end towards the eastern side. 5. I fail to understand, how from the material alone itcan be said that the bus was not on the wrong side. Themiddle of the tar road will be 2.68 metres. The bus hadcrossed even this 2.68 metres from the eastern tar endtowards the western side which is its wrong side. Learnedcounsel appearing for the revision petitioner argued that novalue can be attached to the recitals in the scene mahazar. The [Crl.R.P.33/99]4evidence of PW1 shows that he is not an eye witness to theoccurrence. Therefore, the contention is that based on scenemahazar it cannot be said that bus was on the wrong side. 6. The mere fact that PW1, who pointed out the scene tothe Circle Inspector PW2, turned hostile to the prosecution, the court cannot come to the conclusion that PW1 is not aneye witness. The prosecution declared him as hostile and thecourt has not given any weight to the version given by PW1,since he contradicted his earlier version given to the police. That apart, there is nothing in the evidence of PW21 to showthat PW1 had pointed out the scene of occurrence to him. Thisaspect was not brought from the evidence of PW21.7. PW3 is an eye witness to the occurrence who wastravelling in the jeep. PW7, 8 and 9 were travelling in the bus. All of them stated that the bus was on the wrong side, it isargued by learned Public Prosecutor. But, learned counsel forrevision petitioner argued that PWs. 7 8 and 9 cannot bebelieved. It was submitted that, as per the evidence of PW7, [Crl.R.P.33/99]5there was sufficient space for two vehicles to pass, the placeof occurrence being the National Highway. It was also arguedthat PW7 stated in cross-examination that bus was on theproper side.8. A close reading of the evidence of PW7 shows thatwhat he said was that till the bus reached the place ofoccurrence, the bus was going along the proper side. But thatdoes not mean that the bus was not on the wrong side whenthe accident occurred. Learned counsel for the revisionpetitioner-accused also argued that the evidence of PW8 clearlyreveals that he cannot say that the bus was on the wrong side.PW8 admitted in cross-examination that he did not know whatis meant by wrong side. But it was pointed out by learnedPublic Prosecutor that a reading of the whole of his depositionmakes it clear that bus was going along the right side of theroad and this fact was stated by him to the police. Therefore, the fact that the bus was going along the right side of the roadwas not only stated by PW8 before the court but this fact was [Crl.R.P.33/99]6stated by him to the police also at the earlier point of time.9. However, it was argued on behalf of the revisionpetitioner that PW8 would not have sen the incident since hewas sitting on the back seat of the bus. This also may not be aground to interfere in the conviction. It is not clear from theevidence whether by sitting on the back seat PW8's vision wasblocked. If a person is sitting on the extreme back seat, thereis space between two seats and there can be clear vision. Ithas not been brought out from his evidence that Pw8 wasseated in such a situation which blocked his vision to the sceneof occurrence. Therefore, this argument also is not acceptable.10. It was then argued that speed alone is not a criterionto decide rash and negligence on the part of the driver toconstitute an offence under Section 304-A IPC. Reliance wasplaced on the decision reported n P.S.Jose v. State (1993(2)KLJ 332) wherein it is held that speed alone is not ameasuring scale to determine whether the driver was rash ornegligent. It was a case where there was a fall of the body [Crl.R.P.33/99]7from the cycle just in front of a speedy vehicle which wastotally an unforeseen event and even if brake had beenapplied it would not have been possible to prevent theaccident. It is not a case in which, it was necessary to slowdown the speed of the vehicle because of nearness to school, hospital etc. 11. The dictum laid down in the said decision cannot beapplied to the facts of this case. This is a case in which speedalone is not the reason for the accident. It was pointed out bylearned Public Prosecutor that the bus, even after the hit, went17 metres forward in an uncontrollable manner and hit againsta tree and stopped. Had the vehicle been in a controllablespeed, this would not have happened. It is also clear fromevidence that on the facts and circumstances of this case, thebus ought to have maintained its position on the correct sideof the road to avoid hit on any other vehicle coming on theproper side. Therefore, this is a case where both rashnessand negligence are proved by satisfactory evidence as held by [Crl.R.P.33/99]8the courts below. It is not mere speed alone which contributedto the accident, it was on uncontrollable speed and but forrashness and negligence, the accident could have beenprevented.12. The revision petitioner raised a contention that thevehicle was driven by one Muthuswami who was not competentto drive the jeep. The prosecution proved Ext.P20 which is alicence issued to the said person and there is absolutelynothing in evidence to show that he is not competent to drivethe vehicle. The contention raised is that the accident wascaused due to the rash and negligent driving of the jeep by thedeceased Muthuswami also deserved to be rejected, in thelight of cogent evidence including that of the hostile witnesswhich clearly establishes that the driver of the bus alone wasrash and negligent in his driving. There is nothing on record toindicate that the jeep was driven in a rash and negligentmanner as contented by the petitioner.13. I do not find any reason to interfere with the [Crl.R.P.33/99]9concurrent findings of fact which is based on satisfactoryevidence adduced in this case. The conviction is only legal andproper. The sentence also is proportionate to the gravity ofoffence. In fact, I am of the view that the sentence ought tohave been imposed to run consecutively instead ofconcurrently. Therefore, no interference is warranted. This revision petition is dismissed.K.HEMA, JUDGE.Krs. [Crl.R.P.33/99]10K.HEMA, J.------------------------------------------Crl.R.P. No. 33 of 1999 ------------------------------------------25th day of March, 2011.O R D E R