N. Muraleedharan s/o Krishna Kurup v. Station House Officer, Vadakara Police Station & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **Crl.Rev.Pet.No.4223 OF 2006** **CRA 203/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA CC 439/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED** **N.MURALEEDHARAN S/O KRISHNA KURUP NELLOLI HOUSE, AYANCHERRI P.O., VADAKARA TALUK,, KOZHIKODE DISTRICT.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE** - **1 STATION HOUSE OFFICER VADAKARA POLICE STATION.** - **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **SR.PP - SRI. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **16.6.2020, THE COURT ON 24.06.2020 PASSED THE FOLLOWING:** Crl.R.P.4223/2006 2 ## **ORDER** ## **Dated : 24[th] June, 2020** 1. This revision petition has been filed against the concurrent finding of guilt, conviction and sentence passed against the revision petitioner/accused. 2. The prosecution case is that on 9.3.2002 at about 1.30 pm on the national highway near the bus stand at Vadakara, the revision petitioner/accused drove bus bearing No.KRD 5069 in a rash and negligent manner so as to endanger human life and hit on the rear side of a jeep bearing No.KL 11/D 2788 which was crossing the junction with passengers and thereby caused grievous hurt to many passengers in the jeep and one Sathyan who had been travelling in the jeep sustained fatal injuries and succumbed to the same thereby revision petitioner/accused committed the offence punishable under Secs 279, 337, 338 and 304A IPC. 3. The crime was registered as per the FIS given by PW1 who is Crl.R.P.4223/2006 3 not an eye witness and thereafter PW19 the sub inspector, Vadakara police station conducted the investigation and filed the charge-sheet. 4. On the side of the prosecution, PW1 to 19 were examined and Exts.P1 to P22(a) were marked. After closure of prosecution evidence, the accused was acquitted under Sec.313 Cr.P.C. He denied all the incriminating facts and circumstances put to him. Thereafter on hearing both sides the trial court found the revision petitioner/accused guilty and sentenced him to undergo simple imprisonment for four months and to pay fine of Rs.1000/- under Sec.279 IPC, to undergo simple imprisonment for a period of three months and to pay fine of Rs.500/- under Sec.337 IPC, to undergo simple imprisonment for a period of nine months and to pay fine of Rs.1000/- under Sec.338 IPC and to undergo simple imprisonment for a period of one year and to pay fine of Rs.5000/- under Sec.304A IPC. In default of payment of fine, a further period of simple imprisonment for three months is Crl.R.P.4223/2006 4 also imposed. Against which Crl.Appeal 203/2006 was filed and the Additional District and Sessions Judge, Vadakara as per the judgment dated 13.10.2006 confirmed the conviction and sentence passed against the revision petitioner. Aggrieved by the same the present revision has been filed for various grounds stated in the memorandum of revision. 5. Notice was issued to the respondents and the learned public prosecutor appeared on behalf of the respondent. Lower court records were called for and perused. Both sides were heard. 6. According to the learned counsel for the revision petitioner, the identity of the accused could not be proved by the prosecution and no evidence is forthcoming as to how the accident took place. He would also contend that the direction of the road, the place where the accident took place etc, have not been brought in evidence by the prosecution clearly so as to arrive at a conclusion with regard to the accident and he would also contend that only PW6 and 7 has supported the Crl.R.P.4223/2006 5 prosecution case and on evaluating their evidence no definite finding about the rashness and negligence on the part of the revision petitioner in the incident had been made out. Hence the conviction and sentence passed by the trial court and the appellate court is not sustainable. 7. The learned public prosecutor on the other hand, would contend that the evidence adduced from the side of the prosecution clearly proves the guilt against the accused and the scene mahazar also clearly shows that the bus was on the wrong side while the accident took place and hence the conviction and sentence passed against the revision petitioner is perfectly legal and proper and there is no ground whatsoever to interfere with the same by this court while exercising the powers under revision. 8. So the first question is with regard to the identity of the revision petitioner/accused. Admittedly PW6 the driver of the jeep involved in the accident, ie, jeep No.KL 11/D 2788, and PW7 a passenger who was travelling in the jeep have Crl.R.P.4223/2006 6 supported the prosecution case and deposed about the involvement of the revision petitioner and his rash and negligent driving which resulted in the accident. PW6 would depose that on the date of incident, ie, on 9.3.2002 at about 1.pm while he was going to Thiruvallur from Vadakara by taking the passengers, at the junction the accident occurred. According to him by obeying the traffic rules on giving signal while crossing the road, Sreedurga bus bearing No.KRD5069 came from Kozhikode to Thalassery area and dashed against the right side rear wheel of the jeep. Out of the force of hit, he was thrown away and a passenger in the jeep died. He further deposed that the incident occurred due to the negligence of the bus driver and accused was driving the bus on that day. He also stated that the accused was driving the bus in high speed. 9. During cross-examination it was brought out that the incident occurred in a junction of joining two roads. It was also brought out that he had no previous acquaintance with the Crl.R.P.4223/2006 7 accused and he became unconscious immediately after the accident. He also stated that the name of the accused was stated to the police as informed by others and the further suggestion that when the accident occurred he suddenly moved forward, was denied by him. It is true that during his cross-examination he admitted that he has not stated to the police that the bus was coming in high speed and there is no reason for not stating so. 10. PW7 was a passenger in the jeep and his evidence is that while he was going from Vadakara to Thiruvallur on the road where national highway and the road leading to Thiruvallur joins at the junction, a bus came from the opposite direction and dashed against the jeep and that bus was coming from Kozhikode and himself and others sustained injuries. He also stated about the death of one passenger Sathayan who was travelling in the jeep. Further he categorically stated that the accused was driving the bus at the time of accident and he also identified the accused and Crl.R.P.4223/2006 8 further that the accident occurred due to the negligence of the accused. 11. During his cross-examination it was brought out that he was sitting on the back side of the jeep and was travelling from west to east. The bus driven by the accused was coming towards the bus stand and it was because of the that he noted the same. He also stated that the bus stand is situated on the western side of the road and the accident occurred on the middle of the road. He also denied the suggestion that the accident occurred on the eastern side of the road but according to him it was at the junction. He further reiterated during cross-examination that at the time of the hit itself he had seen the accused. It is true that he also would state that the name of the accused was not told by him to the police. A suggestion was put that the jeep suddenly passed towards Thiruvallur road without giving signals and there upon the jeep gone off and hence the accident took place on the eastern side of the road. That was denied by him also. Crl.R.P.4223/2006 9 12. So on evaluation of the evidence of PW6 the jeep driver and PW7 the passenger in the jeep it could be seen that both of them deposed in corroboration about the driving of the bus by the accused. What is brought out during crossexamination of PW6 the jeep driver is only that he had no previous acquaintance with the bus driver. It is also stated by him that the name of the accused was told by him as per the information given by others to the police. PW7 also categorically stated that the accused was driving the bus, though he would state that the name of the accused was known to him later. But it is very pertinent to note that he also stated during cross-examination that at the time of the hit itself he had seen the accused. There is not even a suggestion to PW7 that he has got any enmity towards the accused so as to implicate him falsely in this case. So though both of them may not be knowing the name of the bus driver, their evidence that it was the accused who was driving the bus at the time of accident and their identification of the Crl.R.P.4223/2006 10 accused before the court at the time of examination could not be discredited . So their evidence that they were not aware of the name of the accused at the time of the incident only strengthens their evidence because nobody could expect that the name of the driver of the bus with whom they have no previous acquaintance will be knowing to them. So the courts below rightly relied upon the evidence of PW6 and 7 in proof of the identity of the accused as the person who drove the bus at the time of incident. 13. In addition to that, prosecution also produced the trip sheet which was produced by the conductor of the bus involved in the incident though the conductor was not examined. The trip sheet book is marked as Ext.P22 and the relevant page pertaining to 9.3.2002 is marked as Ext.P22(a). Ext.P22 was marked through PW19 the investigating officer who has seized the same by describing in Ext.P15 seizure mahazar. PW14, conductor in another bus, is a witness in Ext.P15 seizure mahazar and he admitted his signature in the Crl.R.P.4223/2006 11 same. He also admitted that he had seen the conductor producing the trip sheet and it is at that time that he had signed in the mahazar. But he pleaded ignorance whether the trip sheet shown to him is the same produced by the conductor. Since he was not prepared to admit that fact on that aspect he has been declared as hostile and crossexamined by the learned Assistant public prosecutor. So the evidence of PW6 and 7 while reading in corroboration with the trip sheet Ext.P22(a), there will not be any room for any doubt to conclude that the revision petitioner/accused was driving the bus at the time of accident. 14. The next contention of the learned counsel for the revision petitioner is that there is no evidence to prove convincingly as to how the incident took place. He would contend that the scene mahazar would not give any idea with regard to the place of occurrence or the lie of the road and even the evidence of PW6 and 7 relied upon by both the courts below would not throw any light as to how the accident Crl.R.P.4223/2006 12 ## actually happened. 15. As stated earlier, the prosecution case is that the accused was coming from Kozhikode area, ie, from south and was going towards the bus stand which is situated on the western side of the road. It is also an undisputed fact that the jeep was going towards Thiruvallur road. The driver of the jeep, PW6, categorically stated that by taking the passengers from Vadakara and going towards Thiruvallur at Narayananagaram, the incident occurred. He also stated that while he was crossing the road by obeying the traffic rules, for going towards east, the bus driven by the accused came from Kozhikode area to Thalassery and dashed on the rear right side tyre of the jeep and he was thrown away from the jeep out of the impact of the hit. During his crossexamination, it was brought out that the place of occurrence is a junction where two roads joins. It is also pertinent to note that no question was put to him during cross-examination challenging his evidence that while he was crossing the road Crl.R.P.4223/2006 13 obeying the traffic rules, the bus came from Kozhikode area and dashed against the rear side tyre of the jeep. It is also brought out during cross-examination that the bus dashed against the rear corner on the right side of the jeep. The suggestion that when PW6 suddenly moved forward, the accident occurred, is also stoutly denied by him. It is also to be noted that if at all he was suddenly entering to a road from west to east, definitely the bus would have hit on the front side of the jeep. So the fact that the bus dashed on the right rear side tyre of the jeep itself would clearly indicate that it is after the jeep almost crossing the road that the bus dashed against the rear side which clearly indicates the negligence on the part of the bus driver. The speed of the bus also could be inferred when PW6, the jeep driver, stated that out of the impact of the hit, he was thrown away from the jeep. 16. The evidence of PW5 a pedestrian who was standing at Thiruvallur junction is also relevant in this context though he did not support the prosecution case in toto. She would Crl.R.P.4223/2006 14 depose that the jeep dashed against him. Further she deposed that the jeep was turning towards Thiruvallur area. Initially a bus dashed against the jeep and due to the impact of the hit, the jeep touched on her body. Further she was not prepared to admit about the rashness and negligence on the part of the accused and hence she was declared as hostile and cross examined by the learned Assistant public prosecutor. But the admissible portion of her evidence in chief which stands unchallenged would reveal that the bus dashed against the jeep and due to that impact, the jeep hit against her, a pedestrian. 17. It is also relevant in this context to examine the scene mahazar which was marked through PW12. Appellate court has stated that scene mahazer does not contain the necessary details for any inference regarding the reason for the accident. It is also stated that the scene mahazer is of no value in this case. But I don't think that the observation so made is correct Crl.R.P.4223/2006 15 18. PW12 and PW15 are the witnesses cited in the mahazar. It is true that apart from admitting their signature in Ext.P4, PW12 and 15 were not prepared to admit the signing of the mahazar at the place of occurrence. But the investigating officer, PW19, who was the sub inspector of police Vadakara, during the relevant time would state about the preparation of the scene mahazar after examining the place of occurrence at 10 am on 11.3.2002. But unfortunately the place of occurrence was not specifically stated by him before the court. On perusing the scene mahazar it is seen that the place of occurrence has been stated as Narayana Nagaram and it is also stated that the width of the tar road at the place of occurrence is 18 metres. The distance from the place of occurrence to the eastern tar end is 3.15 metres and to the western tar end, 14.85 metres. So that would reveal that the incident almost occurred on the eastern side of the road. PW6 and 7 would depose in corroboration that the bus was coming from Kozhikode, ie, from south. The correct side Crl.R.P.4223/2006 16 of the bus when coming from south would be the western side of the road. So the place of occurrence shown in the scene mahazar as 3.15 metres to the eastern tar end and 14.85 metres to the western tar end would have indicated that the bus was almost on the eastern side, ie, on the wrong side while coming from south. But as I stated earlier, the place of occurrence was not spoken to by PW19. So the facts stated in the scene mahasser can not be relied upon as evidence. [Mohanan v. State Of Kerala (2011(3) KHC680), Mujeeb Rehman v. State Of Kerala (2020(3)KHC400) ]. But the fact that the incident took place on the eastern side of the road is rather admitted by the defence when a suggestion was made to Pw7 that the jeep suddenly passed to Thiruvalloor area without giving signal and that is why the incident occurred on the eastern side of the road. 19. It is also relevant in this context to appreciate the evidence tendered by the prosecution through PW10, who was the Motor Vehicle inspector at RTA, Vadakara during the Crl.R.P.4223/2006 17 relevant time. He deposed that he inspected the jeep bearing No.KL 11/D 2788 and the report is marked as Ext.P11. He would also state that the damage is noted in column No.7 and further that there was no mechanical defect noted and brake system was efficient. He also examined bus No.KRD 5069 and the certificate is marked as Ext.P12. With respect to that vehicle also his evidence is, brake system was efficient and no mechanical defect was noted and the damage caused is noted in column No.7. 20. On perusing Ext.P11 certificate with respect to jeep bearing No.KL 11/D 2788, the damages noted are (1) rear right hand side damage, (2) right hand side portion of the hood and seat damage, (3) rear right hand side brake light indicator light damage, (4) rear door damage. So the damage caused to the jeep would also indicate that , the damage are noted on the right rear side of the vehicle corroborating with the evidence of PW6 & 7 that the bus dashed against the rear tyre of the jeep. In Ext.P12 certificate pertaining to bus Crl.R.P.4223/2006 18 No.KRD 5069, column No.7 shows the following damage (1) front registration number plate damaged, (2) radiator grills damaged, (3) front right hand side mudguard damaged (4) front right hand side portion of the bumper damaged. 21. So the damage noted to the bus is also a clear indication of hitting the bus upon the jeep on its rear side. The evidence of PW5, the pedestrian as I have already stated, would reveal that due to the impact of the hit of the bus, the jeep moved forward and dashed against him. All those are indications of the high speed of the bus driven by the revision petitioner/accused. The evidence of PW10 the MVI at RTO Vadakara, through whom Ext.P12 the inspection certificate pertaining to Bus KRD 5069 has been marked also would prove that the brake system of the bus was sufficient and no mechanical defect was noticed. Ext.P11 certificate issued by Pw10 after inspecting KL 11/D 2788 jeep involved in the incident also would state that the brake system was efficient and there was no mechanical defect. So that would rule out Crl.R.P.4223/2006 19 the possibility of occurring the incident out of any mechanical defect of the vehicles involved. 22. The evidence adduced through PW4, 5, 8, 13, 16, 18 prove that all of them sustained injuries though they were not prepared to state anything against the accused, the bus driver. The evidence of PW17, the professor Forensic medicine, Medical college hospital, Kozhikode and Ext.P17 post-mortem certificate would prove that a person by name Sathyan aged 30 years died in the accident and the doctor also stated that he died due to the head injuries. That fact is not disputed also. The injury sustained by PW4 to 8, 13, 16 and 18 were proved through their oral evidence which is supported by evidence of PW9, Assistant surgeon, Government Hospital, Vadakara who examined the injured persons and issued Ext.P3 to Ext.P10.So it has come out in evidence that one young man died and several persons sustained grievous injuries out of the rash and negligent driving of the bus by the revision petitioner. Crl.R.P.4223/2006 20 23. On evaluation of the evidence adduced from the side of the prosecution both oral and documentary, I am of the considered view that both the trial court and the appellate court appreciated the facts and circumstances in a correct perspective and came to a right conclusion that the incident occurred due to the rash and negligent driving of the bus No.KRD 5069 by the revision petitioner/accused . I do not find any illegality or impropriety in that finding of fact warranting any interference at the instance of this court. In view of the serious nature of the injury sustained by the passengers in the jeep and also the pedestrians and the death of one of the passengers in the jeep, the sentence passed by the trial court as confirmed by the appellate court is also seems to be just and proper. 24. In the result, the revision petition is found to be devoid of any merit and hence dismissed, confirming the conviction and sentence passed by the courts below. The bail bond executed by the revision petitioner/accused stands cancelled Crl.R.P.4223/2006 21 and he is directed to surrender before the court below for undergoing the sentence passed against him. Sd/- **M.R.ANITHA Judge** Mrcs/18.6.