Kuttan @ Kutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1102 of 2002 ( ) -------------------------------CRA.108/1999 of ADDL. SESSIONS JUDGE, KOTTAYAM CC.74/1993 of J.M.F.C., CHANGANACHERRY** **------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED :-** **---------------------------------------------** **KUTTAN @ KUTTY, S/O.AZHAKAN, PARACKAL HOUSE, NIRMALA CITY BHAGAM, VAZHAVARAKARA KATTAPPANA VILLAGE.** **BY ADVS.SRI.C.K.PAVITHRAN SRI.M.X.XAVIER** ## **RESPONDENTS/RESPONDENT/COMPLAINANT :-** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SMT.JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.R.P. No.1102 of 2002 -----------------------------------Dated this the 17[th] day of December 2012** ## **O R D E R** Petitioner was concurrently held guilty and convicted for the offences under Secs.279, 337, 338 and 304A IPC. He was sentenced to R.I. for two years for the offence under Sec.304A IPC and to various lesser terms of sentence for the offences under Secs.279, 337 and 338 IPC. This revision is directed against the said conviction and sentence. 2. The incident in this case took place on 4.5.1992 at about 10.30 AM. The accused, who was allegedly the driver of the private bus – K.J.Travels bearing No.KRO-7833 was proceeding from Karukachal to Vazhoor. When it was initiating a curve in Mamthuruthy area, Nedumkunnam Kara because the bus was driven at high speed, it went off the road and demolished a fence and then hit a coconut tree Crl.R.P. No.1102 of 2002 -: 2 :- and thereafter the bus driven by the petitioner capsized causing serious injuries to 32 persons. Out of them, three persons succumbed to the fatal injuries on 4.5.1992, 5.5.1992 and 13.5.1992 respectively. After conducting investigation charge sheet was laid against the accused. The accused pleaded not guilty. 3. 56 witnesses were examined and Exts.P1 to P25 were marked on the side of the prosecution. No evidence was adduced on the side of the defence. The learned Magistrate found that the bus was driven by the accused in a rash and negligent manner and so, it hit the fence and thereafter hit the coconut tree and got capsized. The contention that there was mechanical defect was turned down by the learned Magistrate. The appellate court also concurred with the conviction and sentence passed by the trial court and thus the appeal was dismissed. 4. Learned counsel for the revision petitioner submits that the courts below went wrong in holding that Crl.R.P. No.1102 of 2002 -: 3 :- the vehicle had no mechanical defect. PW55, the Joint R.T.O., who examined the bus involved in the accident had noted “steering disconnected”. But, according to PW55, it occurred due to the accident. PW55 could not say from which part of the vehicle it was got disconnected. It is pointed out by the learned counsel for the petitioner that it was admitted by PW55 that it is possible that the 3[rd] Arm Bolt would brake when the vehicle was in running condition and if it so occurred, the steering will get disconnected and if steering is disconnected, the driver cannot control the vehicle. If that be so, according to the learned counsel for the petitioner, the accident occurred since the 3[rd] Arm Bolt was broken and it caused disconnection of the steering and as a result of the same, the bus could not be controlled. Hence, according to the petitioner, rashness or negligence attributed against the petitioner cannot be sustained. It is further submitted by the learned counsel that PW55 has admitted that he could not deny the suggestion that the Crl.R.P. No.1102 of 2002 -: 4 :- accident could have occurred because of the factors mentioned above since he (PW55) did not examine the 3[rd] Arm Bolt. 5. Learned Public Prosecutor submits that the argument advanced by the learned counsel for the petitioner is unsustainable in view of the fact that the evidence is clear on the point that the front portion of the vehicle was completely damaged and so, it was not possible to find whether the 3[rd] Arm Bolt was broken. It is also pointed out that PW55 had in fact clarified the position that it was not possible to examine the 3[rd] Arm Bolt because front portion of the vehicle including the 3[rd] Arm Bolt was completely damaged. It was further elucidated by PW55 that if a vehicle proceeds in the normal speed, even if the 3[rd] Arm Bolt was got damaged or severed, the driver can immediately notice the same and control the vehicle. It was further clarified by PW55 that he could not examine 3[rd] Arm Bolt since the front portion of the vehicle was heavily Crl.R.P. No.1102 of 2002 -: 5 :- damaged and that the body portion of the 3[rd] Arm Bolt was also dented due to the impact of the hit. It was also noticed that the brake system was in order. In the light of the clarification made by PW55 as aforesaid, the argument founded on the premise that the steering was got disconnected and the 3[rd] Arm Bolt which connects the steering was got severed and so, the accident was unavoidable is found to be bereft of any merit. 6. The fact that the bus went off the road, demolished the fence and then hit the coconut tree and thus it capsized causing injury to about 32 persons and the further fact that three of them who sustained serious injuries succumbed to the same are not now in dispute. There is also evidence in abundance to hold that it was the accused who drove the bus at the relevant time. 7. Learned Public Prosecutor would point out that the courts below have also noticed the fact that the vehicle was enroute taken to the workshops at two places and Crl.R.P. No.1102 of 2002 -: 6 :- repair work was done before it reached the place of accident and even thereafter so many persons were allowed to board the bus. In fact, according to the prosecution, the bus was overloaded. So many injured persons who were examined on the side of the prosecution stated before court that the bus driven by the petitioner demolished the barbed fence and thereafter it hit a coconut tree causing it to uproot and then the bus was capsized. It is in evidence that the bus was descending at down gradient and was driving at high speed. At the relevant time, the bus was negotiating a curve. The fact that the bus went off the road is also not disputed. The coconut tree which hit the bus was about 2025 feet away from the road. The fact remains that even before the bus reached the place of incident it was taken to the workshop at two places. That would indicate that the accused was aware of the fact that the bus was having some defect which should have alerted or compelled the driver of the bus to be more cautious and diligent. But the evidence Crl.R.P. No.1102 of 2002 -: 7 :- would show that even after the bus was taken to the two workshops as stated above, the bus was driven at a high speed and in a negligent manner endangering human life. The nature of the evidence is such that the bus should not have been driven at high speed especially when the bus was negotiating a curve. The further fact that the bus had some mechanical defect even earlier should have alerted a prudent driver to be more careful and diligent. That much care and diligence was not taken by the petitioner – the driver of the bus. The contention that there was mechanical defect was rightly turned down by the two courts below. The petitioner cannot successfully contend that the bus went off the road because the 3[rd] Arm Bolt was damaged or severed from the steering. That plea was rightly repelled by the courts below. As such, the conviction is only to be confirmed. 8. Learned counsel for the petitioner submits that the sentence may be reduced. It is a case where 32 persons Crl.R.P. No.1102 of 2002 -: 8 :- sustained injuries. The injuries sustained by some of them were very serious. Three out of them succumbed to the injuries. Therefore it is not a case where the petitioner deserves any sympathy, the learned Public Prosecutor submits. In the decision in **State of Punjab** v. **Balwinder Singh** [(2012) 2 SCC 182], it was held by the Apex Court : “For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt.” (See also the decision in **Dalbir Singh** v. **State of Harayana** [(2000) 5 SCC 82]). Considering all the aspects, this Crl.R.P. is disposed of as stated below :- The verdict of conviction is confirmed. The substantive sentence awarded to the petitioner/accused will Crl.R.P. No.1102 of 2002 **==> picture [30 x 10] intentionally omitted <==** stand reduced to R.I. for one year and he is also sentenced to pay Rs.5,000/- (Rupees Five Thousand only) as fine for the offence under Sec.304A IPC. The sentence awarded for other offences will stand confirmed. The substantive sentences will run concurrently. **N.K.BALAKRISHNAN, JUDGE.** Jvt