Subramaniyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934** **Crl.Rev.Pet.No. 2882 of 2004 (A) -------------------------------CRA.324/2003 of SESSIONS COURT, MANJERI CC.291/1997 of J.M.F.C.-I, PERINTHALMANNA** **--------------------** **PETITIONER/APPELLANT/ACCUSED :-** **--------------------------------** **SUBRAMANIYAN, S/O. CHELLI, KARUVALLIKUNNU, MOORKANAD AMSOM.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** **RESPONDENT/RESPONDENT/COMPLAINANT :-** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM REPRESENTING THE CIRCLE INSPECTOR OF POLICE, PERINTHALMANNA.** **BY PUBLIC PROSECUTOR SMT.JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.R.P. No.2882 of 2004 -----------------------------------Dated this the 22[nd] day of November 2012** ## **O R D E R** Petitioner was concurrently found guilty and convicted of the offences under Secs.279 and 304A IPC. For the offence under Sec.304A IPC, he was sentenced to undergo S.I. for one year and to pay Rs.2,000/- as fine and in default to undergo S.I. for three months. He was also sentenced to undergo S.I. for 3 months for the offence under Sec.279 IPC. 2. The petitioner was the driver of the offending bus bearing No.KLM 7300. The incident took place on 3.6.1996 at about 4 PM. The bus driven by the petitioner was proceeding from west to east along MalappuramPerinthalmanna Road. The accident occurred near the railway gate at Angadippuram. (Just before reaching the railway gate). The deceased was sitting in the second seat behind the driver's seat. When the bus reached the place of incident, it hit another bus bearing No.KLW 2278 which came Crl.R.P. No.2882 of 2004 -: 2 :- from the opposite side. The injured succumbed to the injury sustained on her head. 3. PW1 to PW10 were examined and Exts.P1 to P8 were marked. The accused admitted that he was driving the offending bus at the relevant time. But he denied that there was rashness or negligence on his part while driving the vehicle. It was also contended that the incident took place just a few metres away from the railway gate. It is also in evidence that there was a hump on either side of the gate and so it was not possible for the driver to drive the vehicle at high speed. It was contended that the bus was not driven in a rash and negligent manner as stated by the eye witnesses. 4. The road at that place lying in east-west direction. The offending vehicle was proceeding from west to east. The tar road at that place had a width of 6.95 metres, having road margin of 2 metres on north and 3 metres on the south. The accident spot was fixed by the investigating officer at 4.88 metres to the south of the northern tar end. It was noticed that the damage to the offending vehicle was on the right side Crl.R.P. No.2882 of 2004 -: 3 :- of the bus about 2 seat behind the driver's seat. It was at that place the other vehicle hit. The courts below found that the offending bus must have been driven along the extreme wrong side namely; along the southern side and that on seeing the other bus coming from the opposite direction, the petitioner swerved the vehicle towards left (towards north) but, by then the other bus happened to hit the right side of the bus at the spot mentioned above. Therefore, accepting the case of the prosecution, it was found that the accident occurred as the offending bus was being driven along the wrong side and while so it abruptly turned towards left (towards northern side). Taking note of the damages found on the two vehicles and the observations made by the investigating officer as to the accident spot as referred to above, it was found that the rashness or negligence attributed against the petitioner is well justified. 5. Learned counsel for the petitioner submits that the road at that place had a road margin of 3 metres on the southern side and 2 metres on the northern side and so, since Crl.R.P. No.2882 of 2004 -: 4 :- there was a road margin of 3 metres, the driver of the other bus could have swerved the bus by avoiding the bus hitting the offending bus. The question is whether the petitioner is guilty of the offence under Sec.279 IPC or Sec.304A IPC. 6. Referring to the scene mahazar it was observed by the courts below that the road at that place is straight towards east to a distance of 80 metres. The accident spot fixed by the investigating officer based on the statements of the witnesses is 4.88 metres to the south of the northern tar end. It was not disputed by the defence. There was/is a railway gate about 30 metres ahead of the accident spot. There were two humps on the either side of the railway gate and so it was not possible to drive the vehicle at a high speed. But they may not come to rescue of the petitioner since the negligence is proved not from the speed of the vehicle alone but from other attending circumstances. 7. The petitioner now contends that his bus overtook another vehicle and it was in that process, the bus happened to hit other bus. The driver can overtake another vehicle but Crl.R.P. No.2882 of 2004 -: 5 :- only after ensuring that no other vehicle was coming from the opposite side. Since the bus driven by the petitioner was seen to have crossed about 1 ½ metres to the south of the notional midline, it is quite evident that the petitioner went along the wrong side without taking care of the vehicle coming from the opposite side. The reasonable care and diligence which a prudent driver is expected to take was not taken by him. As observed by the appellate court, it appears from the position of the vehicle and the damage caused to the bus that the bus was actually driven by the petitioner still to the south of the accident spot and that on seeing the other bus coming, he tried to swerve it towards left and in that process, the bus happened to hit the spot, two seats behind the driver seat where the mother of PW1 was sitting who succumbed to the injury sustained in the incident. Both courts below analysed the evidence in the correct perspective and came to the right conclusion that the offending vehicle was driven by the petitioner in a rash or negligent manner. He was rightly convicted of the offences under Secs.279 and 304A IPC. The Crl.R.P. No.2882 of 2004 -: 6 :- ## conviction is only to be confirmed. 8. Learned counsel for the petitioner submits that leniency may be shown in the matter of sentence. In the decision of the Apex Court in **State of Punjab** v. **Balwinder Singh** [(2012) 2 SCC 182], it was held : “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]). However, considering all the aspects, the substantive sentence can be modified to a certain extent. In the result, this Crl.R.P. is disposed of as stated below :- The conviction for the offences under Secs.279 and 304A IPC is confirmed. While reducing the substantive Crl.R.P. No.2882 of 2004 **==> picture [30 x 10] intentionally omitted <==** sentence awarded for the offence under Sec.304A IPC to S.I. for six months, in all other respects, the sentence awarded by the courts below is confirmed. **N.K.BALAKRISHNAN, JUDGE.** Jvt