Premarajan, S/o Karappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945 CRL.REV.PET NO. 1152 OF 2003** **AGAINST CRA 521/2000 OF III ADDITIONAL SESSIONS COURT,** ## **THRISSUR** **CC 208/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **KUNNAMKULAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PREMARAJAN, S/O.KARAPPAN, THEKKEKARA HOUSE, NALLUVAI VILLAGE, KUTTANJERY DESOM, THRISSUR DISTRICT** **BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ SRI.M.GEORGE THOMAS** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P. No.1152/03 ## **-:2:-** **BECHU KURIAN THOMAS, J. ----------------------------------------Crl.R.P. No.1152 of 2003 -------------------------------------------** Dated this the 31[st] day of May, 2023 ## **ORDER** A young boy of 14 years while standing on the footpath near a shop had his head severed from his body by a bus that rammed into him killing him instantly. The driver of the bus was indicted for the offences under section 304A apart from sections 279, 337 and 338 of the Indian Penal Code, 1860 (for short 'IPC'). The trial court convicted him and the appellate court confirmed it. Dissatisfied with the finding of guilt and the consequent sentence, this criminal revision petition has been preferred. 2. In the evening of 02.02.1996 a passenger bus bearing registration No.KER 8485 was driven by the accused through the Pattambi-Nalluvai public road in the north-south direction. When the bus reached the Nelluvai junction, the accused is alleged to have lost control and instead of turning towards the west, the bus went towards the east, crossed the footpath and dashed against a shopping complex. Santhosh - a boy of 14 years was standing on the footpath near the steps to the shopping complex. The said boy was hit by the bus and he died on the spot. The accused was thus alleged to have committed the offences Crl.R.P. No.1152/03 ## **-:3:-** under sections 279, 337, 338 and 304A IPC. 3. The prosecution examined PW1 to PW32 in order to bring home the guilt of the accused and also marked Ext.P1 to P28. After analysing the prosecution evidence, the learned Magistrate found the accused guilty for all the offences alleged and sentenced him to undergo rigorous imprisonment for one year under section 304A IPC apart from a fine of Rs.1,000/- for each of the offences under sections 279 and 338 IPC and in default of payment of fine to undergo simple imprisonment for three months. Separate sentence was not imposed under section 337 IPC. The driving licence of the accused was directed to be suspended for a period of six months. 4. The accused challenged the conviction and sentence before the III Additional Sessions Court, Thrissur. By judgment dated 30.04.2003, the appeal was dismissed. The accused is thus before this Court invoking the revisional jurisdiction. Despite repeated attempts, the trial court records could not be traced out. Though the trial court records are not available, the learned counsel for the revision petitioner as well as the learned Public Prosecutor made available copies of the relevant records. Since both parties agreed to have the case disposed on the basis of the records so made available, this Court proceeded to consider the case on merits. 5. Sri.P.M.Rafiq, learned counsel for the revision petitioner contended that the prosecution evidence had failed to prove the identity of Crl.R.P. No.1152/03 ## **-:4:-** the accused and on that sole reason, the trial court as well as the appellate court ought to have acquitted the accused. It was further submitted that even if the entire prosecution evidence is admitted, still it would only reveal that the incident occurred not due to any negligent act of the accused but only because the driver of the bus tried to avoid a cyclist and in that process while he swerved the vehicle, it lost control and dashed against the building in front of which the deceased was unfortunately standing. The learned counsel also urged that considering the date of incident and the long period of delay in considering this revision petition, a lenient view ought to be adopted and the accused be acquitted. 6. Sri.K.A.Noushad, learned Public Prosecutor on the other hand submitted that the vehicle was driven at extremely high speed and while taking a turn, the accused lost control and dashed against the building situated in the opposite side, causing the death of an innocent young boy. Learned Public Prosecutor also submitted that the delay in disposing the case by this Court ought not to lean in favour of the revision petitioner since he himself had obtained a stay of suspension of sentence from this Court at the time of admission. It was further argued that the manner in which the incident occurred and the severance of the head from the body indicates the gross negligence and the excessive speed at which the vehicle was being driven. In the accident, according to the prosecution, Crl.R.P. No.1152/03 **-:5:-** several other persons were also injured and many of them were also examined in court. It was argued that no leniency ought to be shown. 7. I have considered the rival contentions. 8. The identity of the driver of the offending bus is a crucial factor in a prosecution under section 304A IPC. PW22 is the conductor of the bus from whom Ext.P4 trip-sheet was obtained, which showed the accused as the driver of the bus on 02.02.1996, PW22 specifically deposed that the accused was the driver of the bus on the ill fated day. The conductor of a bus is undoubtedly one of the most competent persons to speak about who the driver of the bus was, on a particular day and for a particular trip. The evidence of PW22 has not even been challenged in crossexamination and therefore there is no reason to doubt the identity of the accused. 9. Apart from the evidence of the conductor of the bus, PW1 at whose instance the FIR was lodged also identified the accused, even though he was declared hostile. PW10 as well as PW11 who were the passengers in the bus had also identified the accused. Though most of the other witnesses were declared hostile, it is the basic principle that the court must be guided by the quality of evidence and not by the quantity. Therefore, the finding of the trial court as well as that of the appellate court that the revision petition/accused was driving the vehicle KER 8485 on 02.02.1996 cannot be said to be perverse or irregular, warranting any Crl.R.P. No.1152/03 ## **-:6:-** interference. 10. The contention of the learned counsel for the revision petitioner that the accident occurred when the driver of the bus tried to save a cyclist and in that process lost control, is not borne out by any legally reliable evidence. Though PW1 mentions that the accused tried to save a cyclist, the said evidence is not reliable. As the said witness was declared hostile, and no other witness supported such a contention, his evidence cannot be accepted as the gospel truth. On the other hand, PW3, who is another shop owner at the same junction, deposed that the accident occurred due to the negligence of the driver of the bus that came from the wrong side. PW4, who was a passenger in the bus and who had sustained injury, stated that instead of turning towards the west, the bus turned to the east resulting in the accident. PW5 as well as PW11 deposed that the bus was being driven at an excessive speed resulting in the accident. Since nothing was brought out to discredit the testimony of the aforesaid witnesses, this Court is of the view that the finding of fact regarding the manner in which the accident occurred attributing negligence to the accused, as found by the trial court and confirmed by the sessions court, cannot be faulted. The said findings are also legally proper, warranting no interference. 11. Both the Magistrate Court as well as the Sessions Court had meticulously considered various factual aspects of the case and found that Crl.R.P. No.1152/03 **-:7:-** the accused had driven the vehicle negligently causing the death of a young boy. The finding of guilt of the accused by the trial court as well as the appellate court is therefore justified. 12. Learned counsel vehemently contended that due to the long lapse of time especially since the accident occurred on 02.02.1996, a lenient view ought to be adopted. Though the said contention was impressive at first blush, on a consideration of the entire circumstances of the case, especially the fact that the driver of a public carrier is endowed with the duty and responsibility to take care of not only the passengers inside the bus but also those pedestrians and others passes by, the delay in disposing this revision by itself ought not to be a ground for adopting a lenient approach. In the decision in **Sagar v. State of Haryana** [(2014) 15 SCC 558], it was observed that it is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Undue sympathy cannot therefore be showed on the accused as it would harm the system and undermine public confidence in the efficacy of law. 13. In this context, it is necessary to bear in mind that the revision was filed as early as in 2003 and the sentence was suspended at the request of the revision petitioner himself. Therefore in a crime of this nature, the delay at the revisional stage cannot be regarded as a sufficient ground to adopt a lenient attitude. The said contention is therefore Crl.R.P. No.1152/03 **-:8:-** rejected. In view of the above discussion, I find no merit in this criminal revision petition and the same is dismissed. ## **Sd/-** **BECHU KURIAN THOMAS** **JUDGE** vps /True Copy/ PS to Judge