Sadanandan Kutty vs The Circle Inspector of Police, City Traffic Police Station, Kozhikode and State of Kerala

S. Siri Jagan, J.—The petitioner is the accused in C.C.No. 83/1996 before the Judicial First Class Magistrate''s Court-V, Kozhikode. He was prosecuted for offences punishable under Sections 279, 337, 338 and 304(A) of the Indian Penal Code. The prosecution case as narrated in the judgment of the Magistrate is as follows:

The prosecution case in brief is that on 24.6.95 at about 20.30 hours the bus bearing No. KLM 927 driver by the accused rashly and negligently with excessive speed and when it reached at Beypore amsom, desom near to Naduvattam new Mahi hit against the pedestrians Rajendran @ Babu Nair, CW. 3 and CW. 4. Due to the injuries sustained Rajendran @ Babu Nair died. CW 3 and CW 4 sustained grievous injuries and the conductor of the bus sustained simple injuries. Hence the accused had committed the offence punishable u/s. 279, 337, 338 and 304(A) I.P.C.

The prosecution examined PWs 1 to 12 and marked Exts. P1 to P11 documents. The accused did not adduce any evidence. After considering the evidence of the prosecution, the Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for a period of six months u/s 279 of the IPC, six months for offence u/s 338 of the IPC and one year u/s 304(A) of the IPC. No separate sentence was imposed u/s 337 of the IPC. The sentences were directed to run concurrently. Set off, if any, was also allowed to the petitioner. Crl. Appeal No. 572/2001 filed by the petitioner before the Sessions Court, Kozhikode Division against the judgment of the court below was dismissed, confirming the conviction and the sentence. The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition.

The petitioner raises two contentions. The first is that the prosecution has no consistent case. It is pointed out that the prosecution witnesses would say that the injured and the deceased were walking along the mud portion of the road, whereas the scene mahazar would state that the accident occurred 40 cms. away to the west from the eastern tar road end. It is submitted that PW 1 would say that the deceased and the injured were walking from north to south. At the same time, the injured would say that they were walking from south to north. It is submitted that although PW 1 claims to have been standing in front of a cycle shop, the scene mahazar does not mention any cycle shop. As such, the prosecution case is not believable is the contention raised. The second contention is that it is clear from the evidence adduced by the prosecution that the accident occurred because of some mechanical defect in the vehicle. It is submitted that in Ext. P10 report from the Motor Vehicles Inspector, it is stated that the control pedals of the driver were jammed with the floor board, which would show that there was mechanical defect in the vehicle. It is also pointed out that in the scene mahazar it is stated that after the accident, the vehicle is parked on the western side, which would show that the accident did not occur as the prosecution wanted the court to believe. In any event, the petitioner is entitled to the benefit of doubt is the contention of the petitioner. Therefore, the learned counsel for the petitioner submits that the petitioner may be acquitted.

In answer, the learned Public Prosecutor would contend that the prosecution has proved the prosecution case beyond any reasonable doubt. It is submitted that the witnesses have proved that the injured and the deceased were walking along the eastern side of the road and the petitioner was coming from behind, from the southern side. The scene mahazar would say that the accident occurred 40 cms. away from the eastern tar end, which shows that the accident occurred on the wrong side of the petitioner''s vehicle. It is further submitted that after hitting the deceased and the injured, the bus hit a tree standing on the eastern side of the road. These facts are more than sufficient to prove rashness and negligence on the part of the petitioner in driving the vehicle, beyond any reasonable doubt is the contention. It is further pointed out that at no point of time, during the cross-examination of the prosecution witnesses, the petitioner had any such case that the accident occurred because of mechanical defect of the vehicle. Ext. P10, according to the learned Public Prosecutor, is the situation after the accident and the jamming of the control panels can only be on account of the bus hitting against the tree and not because of any mechanical defect of the vehicle. It is further submitted that in Ext. P10, it is specifically stated that the brake system was in good condition.

I have considered the rival contentions in detail.

I am inclined to agree with the learned Public Prosecutor. The scene mahazar would show that the accident occurred 40 cms. away from the eastern tar end of the road. The road is seven meters wide at the place of the accident. The fact that the witnesses said that they were walking along the mud portion of the road and the accident occurred 40 cms. inside the tarred portion from the eastern end of the tarred road is not of much significance. The fact remains that the spot of the accident is 40 cms. towards west from the eastern tar end. The petitioner was driving his vehicle from south to north. Therefore, eastern side is clearly his wrong side. It is also not much in dispute that the petitioner''s vehicle hit a tree standing on the eastern side of the road. Therefore, the fact that after the accident the vehicle was found parking on the western side cannot be of much significance to decide the question. As such, the scene of accident proves rashness and negligence on the part of the petitioner beyond a reasonable doubt. As rightly pointed out by the learned Public Prosecutor, the petitioner had no case or suggestion during the examination of any of the prosecution witnesses to the effect that the accident may have happened due to mechanical trouble of the vehicle. The fact that in Ext. P10 there is a mention that the control pedals of the driver were jammed with floor board, which is a situation obtaining after the bus hit the tree cannot be of much significance to decide the question as to whether there was mechanical defect in the vehicle. The Motor Vehicle Inspector has stated in Ext. P10 that there was no defect in the brake system. In fact the petitioner himself had filed a petition to summon the Motor Vehicles Inspector, which was allowed, but the petitioner did not deposit the batta to summon him. All these circumstances would show that the case of the petitioner regarding mechanical defect is without any merit. In the above circumstances, I do not find any merit in the contentions of the petitioner. The learned counsel for the petitioner prays for leniency in the matter of punishment. I am not satisfied that the punishment is in any way excessive or arbitrary. Therefore, I am not inclined to interfere with the punishment also.

Accordingly, this Criminal Revision Petition is dismissed.