K. Unnikrishnan vs State of Kerala

P.S. Gopinathan, J.—The revision petitioner is the accused in C.C.No.146/1995 on the file of the Judicial Magistrate of the First Class, Parappanangady. He was prosecuted by the Station House Officer, Thenhippalam Police Station in Crime No.68/1994 for offences under Sections 279, 337, 338 and 304- A IPC with an allegation that at 10.P.M., on 5/4/1994, the revision petitioner drove a stage carriage bus bearing Regn. No.KRD.763 with passengers, along Chelari - Ramanattukara National Highway in a rash and negligent manner so as to endanger human life and as a result, at Chelari the bus capsized. 11 passengers sustained simple and grievous hurt. Late Abdu, one of the passenger, who had sustained grievous hurt, while undergoing treatment at Medical College Hospital, Kozhikode succumbed to the injuries. After completing investigation, the charge sheet was laid before the trial court. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 21 were examined. Exhibits P1 to P20 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned u/s 313(1)(b) of the Code of Criminal Procedure. He advanced a plea that the road at the place of occurrence was down gradient with a curve. At the time of accident, there was some drizzling. When the revision petitioner applied the break, he lost control of the bus and thus the accident occurred. In effect his defence is that the accident is vis major (act of God). No defence evidence was let in.

The learned Magistrate on appraisal of the evidence arrived at a finding of guilty, consequent to which the revision petitioner was convicted and sentenced to simple imprisonment for one year u/s 304-A IPC, simple imprisonment for six months u/s 338 IPC, simple imprisonment for three months u/s 279 IPC and a fine of Rs.250/- u/s 337 IPC.

Assailing the above conviction and sentence, he preferred Crl.A.No.3/1998 before the Sessions Judge, Manjeri. The Additional Sessions Judge, Manjeri, to whom the appeal was made over, by judgment dated 28/9/2002, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

I have heard the learned counsel for the revision petitioner and the learned Government Pleader. Perused the judgments of the courts below.

Occurrence of the accident was not only not disputed but admitted. The fact that Abdu died due to the injuries sustained is also not disputed. The evidence of PW10, the lecturer in forensic medicine, coupled with Exhibit P2 post mortem certificate issued by PW10, would show that the cause of death was due to the injuries sustained to neck and vertebra. The learned counsel for the revision petitioner would submit that the injury to which Abdu succumbed was sustained while he being lifted from beneath the bus and therefore, death cannot be attributed as a result of the accident. I find no merit in the submission. PWs 1 to 9 and 17 would depose about the injury, both grievous and simple sustained to them. PWs 1, 2, 4, 5, 7 and 8 had attributed negligence against the revision petitioner. Their evidence attributing negligence against the petitioners remains uncontroverted. Circumstances also supports their evidence. Courts below were right in relying on their evidence. PWs 3, 6, 9 and 17 though would depose about the accident and the injury that they sustained, they could not identify the driver. They are also not aware as to what is the cause of the accident.

The nature of the defence set up by the revision petitioner itself would show that the revision petitioner had not disputed the identity. But he had come with excuse. The evidence of PW13, the Assistant Motor Vehicle Inspector, coupled with Exhibit P7 certificate issued by him would show that the vehicle had no mechanical defect. The above evidence of PW13, supported by Exhibit P7, remains unimpeached. The revision petitioner had not adduced any evidence to show that the vehicle had any mechanical defect in contrary to what was deposed by PW7. Therefore, mechanical defect cannot be attributed as a cause for the accident.

Having due regard to the nature of the accident, I find that unless the revision petitioner explains as to how the bus which was driven along the Highway, capsized, negligence on the part of the revision petitioner is evident. A person driving a stage carriage bus with passengers should have been very cautious and careful while driving the bus. He should be more cautious while driving along a difficult road, especially in unfavourable climates. He should have geared down the vehicle while on down gradient, especially ahead of a curve. He should have been at controllable speed. If he was so cautious, the accident alleged in this case wouldn''t have occurred. Absence of care and caution, that a prudent driver ought to have taken is apparent. The courts below were right in finding negligence against the petitioner. The injury sustained to PWs 1 to 9 and 17 are proved by Exhibit P3 to P6 and P9 to P19 wound certificates proved by PWs 11, 12, 16 and 18. Therefore, there is ample evidence to establish all the offences alleged against the revision petitioner. The courts below were right in finding the revision petitioner guilty. The conviction under challenge is unassailable as it is based upon cogent evidence. Having due regard to the manner in which the accident occurred and the impact of the accident including the death of one of the passengers and injuries to 10 others, I find that the sentence awarded by the trial court and confirmed by the appellante court is not at all harsh, but moderate. Sentence also requires no interference.

In the result, this revision petition is dismissed. The revision petitioner is directed to surrender before the trial court for suffering the sentence. Trial court shall see the execution of sentence and report compliance.