Manikuttan Pillla v. State of Kerala & Sub Inspector of Police, City Traffic, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 206 of 2002 ( ) ------------------------------CRA.433/1998 of ADDL. SESSIONS KOZHIKODE-III CC.158/1995 of J.M.F.C.-IV,KOZHIKODE** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **MANIKUTTAN PILLA, S/O.SIVANANDA PILLA, KOOTHATTUKULAM AMSOM, MUVATTUPUZHA.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **COMPLAINANT(S)/RESPONDENTS/COMPLAINANT & STATE:** **-----------------------------------------------** **1. SUB INSPECTOR OF POLICE, CITY TRAFFIC** - **POLICE STATION, KOZHIKODE.** **2. STATE OF KERALA, REPRESENTED BY THE** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 206 of 2002** ## **========================= Dated this the 11[th] day of December, 2012** ## **ORDER** The petitioner was concurrently held guilty and convicted for offences punishable under Secs.279 and 304A or IPC. He was sentenced to S.I for one year for the offence under Sec.304A of IPC. No separate sentence was awarded for the offence under Sec.279 of IPC. This revision is directed against the said conviction and sentence passed against him. 2. The incident took place on 06.02.1994 at about 0.0010 hours, that is at mid night. The petitioner was the driver of K.S.R.T.C bus bearing registration No. KL-15 1289 which was proceeding from Perumbavoor to Mananthavady. The accident took place near Manorama Junction in Kozhikode town on the Kozhikode-Wyanad road. The exact place of accident was a spot 17.50 mtrs Crl.R.P.No.206/2002 : 2 : to the north of the junction where one road deviates to join Kannur road. The tar road at that place has a width of 7½ mtrs. The place of incident is shown at a spot 1.75 mtrs to the west of the eastern edge of the tar road. The bus was proceeding from south to north. The allegation is that while the bus driven by the accused was overtaking a lorry it hit the motor cycle which came from the opposite side and as a result of the same, Arun Kumar and Naveen Raj, the rider and the pillion rider of the motor cycle sustained injuries to which they later succumbed. The investigation was conducted and the charge sheet was laid against the petitioner. 3. PW1 to PW19 were examined and Exts.P1 to P14 were marked. 4. The learned Magistrate placed reliance on the oral testimony of PWs 1 and 2 who witnessed the incident and the evidence of PW18 the conductor of the KSRTC bus of which the accused was the driver and also Ext.P11 Crl.R.P.No.206/2002 : 3 : the log sheet to hold that the offending vehicle (KSRTC bus) at the relevant time was driven by the petitioner. The learned Magistrate accepted the evidence given by PWs 1 and 2 to hold that the accident took place due to rash or negligent driving of the KSRTC bus by the petitioner and thus he was convicted and sentenced as mentioned above. 5. The learned Additional Sessions Judge, after reappraisal of the evidence concurred with the conviction and sentence passed by the learned Magistrate. 6. The learned counsel for the revision petitioner submits that there is contradiction in the evidence given by PWs 1and 2. It was not at all possible for PWs 1and 2 to witness the incident. The KSRTC bus had stopped a few minutes before it reached the junction so as to allow the passenger to board the bus and so the contention that the bus was driven at high speed cannot be accepted at all, the learned counsel submits. There is no acceptable Crl.R.P.No.206/2002 : 4 : evidence to show that it was the petitioner who drove the bus at the relevant time. Hence, the learned counsel submits that the conviction and sentence passed against the petitioner are unsustainable. 7. As said earlier, PW1 was the autorickshaw driver, who stated before court that the motor cycle, of which one of the deceased was the rider and the other was the pillion, was proceeding in front and at that time the KSRTC bus came from the opposite side; it over took a lorry and in that process, it hit the motor cycle. PWs 1and 2 have categorically stated that it was the accused who drove the KSRTC bus at the relevant time. That apart there is unconvertible evidence given by PW18 the conductor of the very same KSRTC bus who deposed before court that it was the petitioner who drove the bus at the relevant time. There is also the log sheet (Ext.P11) which would further prove that the petitioner was the driver of the KSRTC bus at the relevant time. Therefore Crl.R.P.No.206/2002 : 5 : the concurrent finding entered by the courts below that the petitioner was the driver of the bus at the relevant time is well justified. 8. The other point that requires scrutiny is whether rashness or negligence attributed against the petitioner could be proved by the prosecution beyond reasonable doubt. The incident took place on the Kozhikde-Wynadu road. It lies in north south direction. The KSRTC bus was proceeding from south to north. The driver was expected to drive his bus along the western half of the tar road. The evidence given by PWs 1 and 2 which was properly scanned and appreciated by the courts below would show that the KSRTC bus was overtaking a lorry and at that time it hit the motor cycle which was proceeding from north to south. The fact that there was still a gap of 1.75 mtrs on the eastern side, cannot be a reason to hold that the negligence attributed against the petitioner is untenable. As the petitioner over Crl.R.P.No.206/2002 : 6 : took the lorry without ensuring that there were no other vehicles coming from the opposite side and without ascertaining the fact that the road is free so as to over take the lorry, the contention that there was no rashness or negligence on his part cannot be accepted. It is not the speed alone that decides the rashness or negligence. When the bus was expected to be driven along the western half and when the driver intends to overtake another vehicle which was proceeding in front he must be doubly cautious that no other vehicle was coming in the opposite direction. Here, the bus went to the wrong side at a spot of 1.75 mtrs to the west of the eastern end of the tar road. That also proves to the hilt the negligence attributed against the petitioner. No plausible explanation could be given by the accused how his vehicle happened to be on the wrong side and hit the motor cycle. The contention that there would have been security guards or other persons in the office of Malayala Crl.R.P.No.206/2002 : 7 : Manorama also does not gain ground. First of all, the place of incident is more than 13 mtrs to the north of the Manorama building. Not only that, the employees of Manorama are not expected to be on the road anticipating an incident so as to witness the same. PWs1 and 2 who were found to be natural witnesses have deposed in line with the case of the prosecution. The fact that the deceased persons were taken to the hospital by PW2 would prove that he was actually present there. PW1 has stated that PW2 was present there. Therefore, the contention that PWs1 and 2 could not have witnessed the incident must also fall to the ground. I find no illegality, incorrectness or impropriety in the verdict of conviction given by the courts below. The conviction is to be thus confirmed. 9. The learned counsel for the petitioner submits that leniency may be shown in the matter of sentence. The decision in **Dalbir Sing** case (2000 (5) SCC 82) was Crl.R.P.No.206/2002 : 8 : ## followed by the Apex Court in the decision **State of Punjab v. Balwinder Sing & Others** (2012(2) SCC 182). In **Dalbir Sing** it was held: “1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” The ratio therein was reiterated in **B.Nagabhushanam v. State of Karnataka** (2008 (5) SCC 730. However, I find that slight modification can be given. 10. In the result, this criminal revision petition is disposed of as stated below: Crl.R.P.No.206/2002 : 9 : The conviction is confirmed. In supersession of the sentence awarded by the courts below, the petitioner is sentenced to S.I for six months and to pay Rs.5,000/- as fine and in default, he will undergo S.I for one month. Petitioner will surrender before the learned Magistrate on **30.01.2013.** sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge