Kaliaperumal and others vs State

M. Karpagavinayagam, J.—This revision is against the conviction and sentence by the learned Sessions Judge, Nagapattinam in C.A. No.

58 of 1992, concurring with the conclusions of the learned Judicial Magistrate No. 1, Mayiladuthurai in C.C. No. 1223 of 1987 for the offence

under S. 304 , I.P.C. The revision petitioner being the driver and conductor of the bus bearing registration No. TML 5306, belongs to Cholan

Transport Corporation, were prosecuted and convicted by the trial Magistrate by Judgment dt. 1-4-1992, for the offence under S. 304A I.P.C.

and sentenced them to undergo R. I. for six months each and to pay a fine of Rs. 1000/- in default to undergo R. I. for three months. The lower

appellate Court while confirming the conviction by judgment dated 21-6-1993, modified the sentence into fine of Rs. 1,000/- each, and ordered

release of the revision petitioners as they had already paid the fine amount in the trial Court.

The short facts of the prosecution Case are as follows :-

The deceased Nallammal is the grand mother of P.W. 1 John Christian Vasu. On 6-7-1987, P.W. 1 took his grand mother, the deceased from the

house of his aunt at Koorainadu, Myladuthurai in a bicycle, in order to send her to his village and they reached the bus stop at Vandipetti. At about

11:45 a.m. the town bus No. 5, bearing registration No. TML 5306 of Cholan Transport Corporation came and stopped in the said bus stop on

its way to Myladuthurai. Petitioners 1 and 2 were the driver and conductor of the bus. Then, P.W. 1 assisted his grand mother to board the bus,

through the front entrance. Before she fully entered into the bus, 2nd petitioner, the conductor of the bus blew the whistle, following which the

driver of the bus, the 1st petitioner started the bus with a great speed. The deceased fell down from the bus. On noticing this, P.W. 1 and others

made an alarm and also banged on the doors of the bus, asking the driver to stop the bus. As the bus started very speedily, the rear wheel of the

bus ran over the deceased on her body. After crossing 100 feet, the driver stopped the bus and both the petitioners ran away from the place of

accident. The deceased fell unconscious.

On information P.W. 5 Kesarinathan, Sub-Inspector of police, came to the spot and arranged the victim to be sent to Government Hospital. On

examination of the deceased, P.W. 4 Dr. Swaminathan, declared dead and sent Ex. P. 6 death intimation to police station. On receipt of Ex. P. 6,

P.W. 5 Sub-Inspector of police went to Government Hospital, Myladuthurai and recorded the statement of P.W. 1 John Christian Vasu, Ex. P. 1.

He then returned to the Police Station and registered the case in Cr. No. 832 of 1987 under S. 304, I.P.C., against both the revision petitioners

and again went to the place of occurrence. P.W. 5 Sub-Inspector of police prepared Ex. P. 2 observation mahazar and Ex. P.7 rough sketch

attested by P.W. 2 Mugaidoon. He recovered from the place of occurrence, M.O. 1 series one pair of rubber chappel under Ex. P. 3 mahazar.

After examining some more witnesses and receiving Ex. P. 4 report from P.W. 3 Anandan, Motor Vehicle Inspector and Ex. P.9 post-mortem

certificate and completion of investigation he filed charge-sheet against the revision petitioners under S. 304A, I.P.C.

Considering every aspect and the established circumstances of the case, learned trial Magistrate found the revision petitioners guilty for the

charge framed against them and convicted and sentenced them as stated above. On appeal by the revision petitioners, the learned first appellate

Judge, while confirming the conviction recorded by the trial Magistrate, modified the sentence into fine of Rs. 1,000/- each. Aggrieved, the

petitioners have filed this revision.

Learned counsel for the revision petitioners has elaborately argued before this Court and contended that eye-witnesses could not have been

present at the place of occurrence, and in any event it cannot be held that both driver and conductor of the bus are responsible for the offence

under S. 304-A, I.P.C. for a single incident. He further submits that P.W. 1 being the grandson of the deceased Nallammal, his evidence cannot be

taken as true version.

Learned Government Advocate representing the respondent/State also took me at length through the judgments and various findings recorded

by both the Courts below and contended that even though the first appellate Court modified the sentence into one of fine, confirmed the findings

arrived at by the learned trial Magistrate after considering the materials on record.

6A. The tenability of otherwise of the rival submissions made as above, may now fall for consideration in the arena of discussion. The arguments

placed before the Court by learned counsel for the revision petitioners does not appeal to me for the following reasons. According to the

prosecution, the grand mother of P.W. 1 did not enter into the bus fully, but the bus was started very speedily by the 1st petitioner on the whistle

given by the 2nd petitioner. It is needless to say that the conductor, the 2nd petitioner in this case, must note before whistling, whether all the

passengers boarded the bus and particularly whether any passenger is on the foot board, attempting to board the bus. In the instant case, the

petitioner/driver could have seen the deceased, who was just boarding the bus through the front entrance, as the driver seat was very near to the

front entrance of the bus and he could have waited till the deceased entered the bus and got her seat, especially when the deceased was a very old

woman.

Another factor to be taken into account is that after the whistle given by the 2nd petitioner conductor, if the 1st petitioner/driver took the bus in a

normal speed, then the accident could have been avoided. The responsibility has been rightly fixed by the trial Court as well as by the first appellate

Court oh the 1st petitioner/driver also, for his rash and negligent driving. He could have stopped the bus, if he had taken the bus slowly, on hearing

the alarm raised by P.W. 1 and others by banging into bus. Because of his rash and negligent driving, the 1st petitioner was not able to apply brake

immediately, so as to stop the bus at the starting point itself. The very fact that the rear wheel of the bus ran over the deceased shows that the bus

must have been started very speedily. The bus stopped only after 100 feet which also shows the heavy speed of the vehicle.

Therefore, the entire evidence and the circumstances of the case go a long way to support the prosecution case and both the Courts below were

right in accepting the guilt of the accused. I do not see any justification to interfere with the findings of both the Courts below.

As the revision has no merits, the same is liable to be dismissed. Accordingly the revision is dismissed.

Revision dismissed.