V.Sasidharan vs State Of Kerala

Sophy Thomas, J

The revision petitioner is the sole accused in CC No.272 of 1993 on the file of Judicial First Class Magistrate Court, Triur, and he is the appellant in Crl.Appeal No.126 of 2000 on the file of Additional District and Sessions Judge (Adhoc), Fast Track Court No.I, Manjeri. He was convicted and sentenced by the trial court for offences punishable under Sections 304A, 338 and 279 of IPC, and the appellate court dismissed their appeal, and hence this revision petition.

The factual matrix of the prosecution case could be summarised as follows:

On 20.12.1992 at about 10.45 a.m, the revision petitioner drove KL M 8161 stage carriage, through Tirur-Valancherry public road in a rash and negligent manner, and when it reached Vattappara, it dashed against the rear side of KLG 5751 stage carriage. As a result of the impact, passengers in both the vehicles sustained serious injuries and three of them died at the hospital. Since three persons died and many were injured seriously due to the rash and negligent driving of the stage carriage by the revision petitioner, Crime No.157 of 1992 was registered against him by Valancherry Police, and after investigation, charge sheet was laid against him under Sections 279, 337, 338 and 304A of IPC.

Since the accused pleaded not guilty to the accusations levelled against him, prosecution examined PWs 1 to 47 and marked Exts.P1 to P24 to prove its case. The accused denied the incriminating materials brought out in evidence, but no defence evidence was adduced.

The learned Magistrate, on evaluating the facts and evidence, found that, the accident occurred due to the rash and negligent driving of KL M 8161 stage carriage by the accused, and three persons lost their lives, and many persons got injured in that incident. So, the accused was found guilty under Sections 279, 337, 338 and 304A of IPC and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.3,000/-under Section 304A of IPC with a default sentence of rigorous imprisonment for three months. Under Section 338 of IPC, he was sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs.1,000/- with a default sentence of rigorous imprisonment for one month. Under Section 279 of IPC, he was sentenced to pay fine of Rs.1,000/- with a default sentence of rigorous imprisonment for 15 days. No separate sentence was awarded under Section 337 of IPC. There was further direction that the substantive sentences shall run concurrently.

The revision petitioner preferred Crl.Appeal No.126 of 2000, challenging the conviction and sentence passed by the trial court. The appellate court found no reason to interfere with the finding of the trial court, and hence dismissed the appeal.

Now this Court is called upon to verify the legality, propriety and correctness of the decision taken by the appellate court, by which the conviction and sentence imposed by the trial court was confirmed.

Heard learned counsel for the revision petitioner and learned Public Prosecutor.

The fact that the revision petitioner was the driver of KLM 8161 stage carriage at the time of incident, is not under dispute. The fact that the said bus was involved in the road traffic accident on 20.12.1992 at 10.45 a.m at Vattappara also is not in dispute. The fact that three persons died, and so many persons got injured in that accident is proved by the prosecution through reliable witnesses and relevant documents.

PWs 2, 8 to 19, 25 to 31 and 34 to 41 are the injured persons, out of which PWs 26, 27 and 28 were travelling in KLG 5751 stage carriage by name ‘KMS’, and the others were travelling in the bus driven by the accused. PWs 26, 27 and 28 categorically deposed before court that, the bus driven by the accused went and hit at the rear side of KMS bus, and as a result, they sustained injuries. All the injured witnesses identified the accused as the driver of the offending bus, and according to them, the accident occurred due to his rash and negligent driving. PW4-the conductor of the offending bus also supports the case of the prosecution that, at the relevant time, the accused was driving that vehicle. The testimony of PW4, who was the colleague of the accused in the offending bus, on the relevant date is the most reliable evidence to prove the identity of the driver. The very fact that the bus driven by the accused went and hit at the rear side of the other bus, speaks about his rash and negligent driving. Exts.P16 and P17 reports of the Motor Vehicle Inspector also will show that, the damages on the offending bus were on its front portion and damages on the other bus were on its back side. Ext.P17 report would show that, there was no mechanical defect for KL M 8161 stage carriage driven by the accused and the condition of its brake was efficient.

Exts.P15, P23 and P24 postmortem certificates of the deceased amply prove that, they died as a direct result of the injuries sustained in the road traffic accident. The testimony of the witnesses clearly shows the direct nexus between the death of the three persons and the injuries sustained by them in the accident.

Learned counsel for the revision petitioner contended that, the defence could not cross examine many of the prosecution witnesses, and so great prejudice is caused to the revision petitioner. But, learned Magistrate has endorsed at the bottom of the deposition that, though learned defence counsel was present before the court, he reported ‘no cross’. Learned Magistrate informed the accused about his right to cross examine the witnesses in person, but that was also not done. So, the appellate court found that, his grievance that, he was not given sufficient opportunity to conduct cross examination, was not a genuine one, and so, he could not have complained about any prejudice caused thereby. The revision petitioner recalled PW3, PW11, PW14 and PW16 at the time of defence evidence stage, and then PW3, PW14 and PW16 turned hostile to the prosecution. The appellate court rightly found that, those witnesses were won over by the appellant at a subsequent stage after their first examination. The trial court found that, even on eschewing the testimony of PW3, PW14 and PW16, evidence of the remaining witnesses was sufficient to prove that, the accident occurred due to the rash and negligent driving of KLM 8161 bus by the accused. Exts.P3 to P14 wound certificates will show that, the accident caused hurt including grievous hurt to many of the witnesses, apart from causing death of three persons. The prosecution proved beyond reasonable doubt, that the accident occurred due to the rash and negligent driving of KLM 8161 stage carriage by the revision petitioner. So, there is no irregularity or impropriety in the finding of the appellate court upholding the conviction of the revision petitioner under Sections 279, 338 and 304A of IPC.

Now coming to the sentencing portion, the incident occurred on 20.12.1992. The trial court convicted him on 05.06.2000. The appellate court confirmed the conviction and sentence as per judgment dated 06.06.2003. The revision petitioner approached this Court in the year 2004, and got his sentence suspended on executing bond as directed by this Court. This revision petition was pending before this Court for the last 19 years. At the time of incident, the accused was aged only 31, and at the time of filing the appeal he was 39. 31 years elapsed after the incident, and now he is a man aged 62. The delay speaks about the failure of our system in administering justice in a time bound manner.

Learned counsel for the revision petitioner prayed for a lenient approach in the matter of sentence, as the revision petitioner is now a cardiac patient aged 62 years. He produced copy of some medical records for perusal of this Court, which shows that, in the year 2019, the revision petitioner had undergone angiogram due to coronary artery disease at Aster MIMS Hospital. He pleaded for avoiding jail sentence, as the incident occurred about 31 years ago, and no mens rea was involved in that accident. But the fact remains that the bus driven by him dashed against the rear side of another bus causing death of three persons and grievous injuries to many. The evidence of PW10 is to the effect that, the other bus was stopped in a bus stop, and then the bus driven by the revision petitioner dashed against the rear side of that bus. So, we cannot ignore that incident as a mere accident, without any motive. But, considering the fact that the accident occurred 31 years ago when the revision petitioner was aged only 31, this Court is inclined to reduce and modify the sentence as follows:

The sentence under Section 304A of IPC is reduced and modified into simple imprisonment for six months and fine of Rs.3,000/-, and in default simple imprisonment for three months. The sentence under Section 338 of IPC is reduced and modified into simple imprisonment for two months and fine of Rs.1,000/- and in default simple imprisonment for one month. Under Section 279 of IPC, upholding the fine amount, the default sentence is modified into simple imprisonment for 15 days. The substantive sentences shall run concurrently.

In the result, the revision petition is allowed in part, upholding the conviction and reducing the sentence by modifying the same as aforementioned.