Veluswamy T.V. v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 18 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 10.11.2010 IN CRA NO.570/2006 OF II ADDITIONAL DISTRICT COURT & SESSIONS COURT,PALAKKAD ``` ``` AGAINST THE JUDGMENT DATED 15.09.2006 IN CC NO.45/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHITTUR ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` VELUSWAMY T.V., S/O.VELLINKIRI, AGED 46 YEARS, HOUSE NO.4/64, THENAMANALLUR, THONGAMUTHUR, COIMBATORE, TAMILNADU. ``` ``` BY ADVS.SRI.VIJU THOMAS SMT.M.MEENA JOHN ``` ## `RESPONDENT/RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.No.18/2011 ``` ``` -:2:- ``` ## Dated this the 25[th] day of October,2023 ## **O R D E R** The revision petition is filed questioning the legality, propriety and correctness of the judgment passed in Crl.A. No.570/2006 of the Court of the Sessions Judge, Palakkad(Appellate Court), confirming the conviction and sentence passed in C.C.No.45/2001 by the Court of the Judicial First Class Magistrate, Chittur(Trial Court), finding the revision petitioner guilty for the offences under Sections 279, 337, 338 & 304A of the Indian Penal Code, 1860(in short, ‘IPC’) and convicting and sentencing him for the above offences. The revision petitioner was the sole accused in the above case. ## **The prosecution case in brief:** 2. The prosecution case is that, on 11.6.2000, the accused had driven a stage carriage bus bearing ``` Crl.R.P.No.18/2011 ``` ``` -:3:- ``` registration No.KL-9A/8589, from Coimbatore to Kollengode, in a rash and negligent manner. When the bus reached ‘Palappallam’, it capsized into the paddy field. Several passengers on the bus sustained grievous injuries, and one of them named ‘Ramamoorthy’ sustained fatal injuries. After the investigation, the police laid their final report alleging the accused to have committed the above offences. 3. The accused denied the substance of the accusation read over to him. In the trial, the prosecution examined PWs 1 to 38 and marked Exts P1 to P47(a) in evidence. The accused denied the incriminating circumstances appearing against him in the evidence in the examination under Section 313 of the Code of Criminal Procedure,1973. 4. The learned Magistrate, after analysing the materials placed on record, found the accused guilty ``` Crl.R.P.No.18/2011 ``` ``` -:4:- ``` and consequentially convicted and sentenced him to undergo simple imprisonment for a period of six months under Section 279 of the IPC and to pay a fine of Rs.500/-, to undergo simple imprisonment for a period of three months under Section 337 of the IPC and to pay a fine of Rs.500/-, to undergo simple imprisonment for a period of six months under Section 338 and to pay a fine of Rs.500/- and to undergo simple imprisonment for a period of one year under Section 304A of the IPC and to pay a fine of Rs.1,000/. It was also ordered that, in case of default of payment of the fine amounts, the accused shall undergo simple imprisonment for a further period of six months. The sentences were ordered to run concurrently. 5. Aggrieved by the said judgment, the accused preferred Crl.A.No.570/2006 before the Appellate Court. ``` Crl.R.P.No.18/2011 ``` ``` -:5:- ``` 6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, dismissed the appeal and confirmed the conviction and sentence passed by the Trial Court. 7. It is challenging the concurrent judgments of the courts below; the revision petition is filed. 8. Heard; Sri.Viju Thomas, the learned counsel appearing for the revision petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent/State. 9. Sri.Viju Thomas vehemently argued that the courts below have concurrently gone wrong in finding the revision petitioner guilty of the above offences. He submitted that the majority of the alleged ocular witnesses (passengers who were travelling in the bus) denied the prosecution case that the revision petitioner had driven the bus in a rash and negligent manner. The ``` Crl.R.P.No.18/2011 ``` ``` -:6:- ``` courts below, solely based on the interested testimonies of a few witnesses/passengers, have convicted the revision petitioner, which is erroneous and perverse. He placed reliance on the decisions of the Rajasthan High Court in **State of Rajasthan v. Nauratan Mal** [2002 KHC 2006] and the Himachal Pradesh High Court in **Bhupinder Sharma v. State of H.P.** [2016 KHC 3941] and **State of Himachal Pradesh v. Ashok Chauhan** [2018 KHC 4069] to fortify his contentions that the speed of the vehicle is not a criterion to find that the revision petitioner was rash and negligent in driving the vehicle. The contradictions in the prosecution witnesses should enure to the benefit of the revision petitioner, and he should be given the benefit of doubt. Hence, the revision petition may be allowed, and the judgments of the courts below be set aside. ``` Crl.R.P.No.18/2011 ``` ``` -:7:- ``` 10. The learned Public Prosecutor supported the judgments and argued that there is no illegality or impropriety in the conclusions arrived at by the courts below, which are based on the materials on record, especially the evidence of the eyewitnesses. Moreover, this Court may not upset the findings of the factfinding courts in a revision petition. Therefore, the revision petition may be dismissed. 11. Is there any illegality, impropriety or irregularity in the impugned judgments? 12. It is nigh well-settled in a host of judicial pronouncements that the revisional power of this Court is to be sparingly exercised and only in cases of exceptional rarity when the conclusion arrived by the facts finding courts is perverse and palpably wrong. The revisional Court is not to substitute the views of the Trial/Appellate Court unless and until there is a ``` Crl.R.P.No.18/2011 ``` ``` -:8:- ``` patent illegality in the impugned order which shocks the conscience of the revisional court. 13. The prosecution case is that, on 11.6.2000, the accused drove the stage carriage vehicle in a rash and negligent manner so as to endanger human life. When the vehicle reached ‘Palappallam’, the bus capsized into the paddy field. In the incident, many of the passengers sustained grievous injuries, and one of them lost his life. 14. To substantiate the prosecution case, PWs 1 to 38 were examined, and Exts P1 to P47(a) were marked in evidence. Many of the prosecution witnesses were passengers on the bus. Out of the witnesses, PWs 7, 31 & 33 have identified the accused and positively testified that the accused drove the bus at overspeed and in a rash and negligent manner. PW33 – the sterling witness – in her oral testimony testified ``` Crl.R.P.No.18/2011 ``` ``` -:9:- ``` that she was seated right behind the accused, who was on the steering wheel, and she clearly cautioned the accused to reduce the speed of the vehicle. But, her advice fell on deaf ears and the accused continued to drive at breakneck speed and, immediately thereafter, the bus capsized. The evidence of PWs 7 and 31, the other eye-witnesses corroborates with the testimony of PW33. 15. The principal contention of the learned Counsel for the revision petitioner is that since most of the witnesses have not identified the accused, the conviction of the courts below based on the testimonies of three witnesses cannot be sustained. Furthermore, as it was raining on the ill-fated day, the accused may be given the benefit of doubt, and the conviction may be set aside. 16. It is trite that it is the quality rather than the ``` Crl.R.P.No.18/2011 ``` ``` -:10:- ``` quantity of the evidence that matters in adjudicating a case. 17. A reading of the records reveals that the bus was negotiating a curve and there was rain at that time. PW33 warned the accused about his speed and requested him to exercise more caution. Yet, the accused drove the bus in a rash and negligent manner to endanger human life, which was the root cause for the incident and one of the passengers losing his life and several others getting injured. The official witnesses and the records prove that the accused was the driver, and it corroborates the testimony of the sterling witnesses. The fact-finding courts have, after appreciating the materials placed on record, concurrently concluded that the accident occurred solely due to the rashness and negligence of the accused. The contentions that have been raised in the memorandum of revision petition are questions of facts ``` Crl.R.P.No.18/2011 ``` ``` -:11:- ``` which have been answered by the courts below. 18. On a consideration of the records and the findings of the courts below, I do not find any illegality, irregularity or impropriety in the impugned judgments to take a contrary view by exercising the revisional power of this Court. Therefore, I confirm the finding of conviction against the accused. 19. Now, coming to the question of sentence. 20. The learned counsel for the revision petitioner argued that since the accident occurred more than 23 years back and now as the revision petitioner is 63 years of age, and his wife is on her deathbed, a lenient view may be taken in the matter of sentence, otherwise it would cause severe prejudice and hardship to him. 21. It is trite that misplaced sympathy cannot find a place in the criminal adjudicatory process. An order of sentence is to be passed by keeping in mind the ``` Crl.R.P.No.18/2011 ``` ``` -:12:- ``` gravity of the offence, the proportionality of the punishment, the deterrence and the compensatory part of the sentence. 22. Even though this Court has found that the accused had driven the vehicle in a rash and negligent manner, which led to the death of one of the passengers and grievous injuries to many others, considering the fact that the incident took place twenty-three long years ago, I am of the view that a lenient view can be taken in the matter by modifying and reducing the substantive sentence to simple imprisonment for three months and directing him to pay a fine amount of Rs.5,000/-, which would meet the ends of justice. 23. In the result, - (i) The revision petition is partly allowed; - (ii) The conviction imposed on the revision ``` Crl.R.P.No.18/2011 ``` ``` -:13:- ``` ## petitioner by the courts below is confirmed; - (iii) The sentence imposed by the courts below is modified and reduced by sentencing the revision petitioner/accused to undergo simple imprisonment for three months each for the offences under Sections 279, 337, 338 & 304A of the IPC and to pay a fine amount of Rs.5,000/- for the offence under Section 304A of the IPC and in default to undergo simple imprisonment for a further period of three months. The sentences shall run concurrently; - (iv) The revision petitioner is directed to appear before the Trial Court on or before 23.12.2023 to undergo the sentence and pay the fine amount; - (v) In case of failure of the revision petitioner to appear before the Trial Court as ordered above, the Trial Court is directed to execute the sentence, in accordance with law; - (vi) The execution of the sentence of the revision petitioner shall stand deferred till 23.12.2023; ``` Crl.R.P.No.18/2011 ``` ``` -:14:- ``` (vii) The Registry is directed to forward a copy of the order to the Trial Court for compliance. Sd/- ## **C.S.DIAS,JUDGE** DST/26.10.23 //True copy// P.A.To Judge