Conviction under IPC Sections 304A and 429 for rash driving resulting in death and injuries, with modified sentencing considering the delay since the incident.

JUDGMENT

This appeal is at the instance of the sole accused in S.C No. 397/2006 on the file of III^rd Additional Sessions Judge (Adhoc), Fast Track Court No.1, Thrissur, challenging his conviction and sentence under section 304(A) and 429 of IPC , as per judgment dated 03.08.2007.

2. The prosecution allegation is that on 03.05.2001, at 4 a.m., the accused drove Reg.No.KL.8F.1555, stage carriage through Thirssur-Kunnamkulam Public road, in a rash and negligent manner endangering human life, from south towards north and near the chapel Mundoor it hit against the back side of an elephant which as walking in front, causing serious injuries and thereafter the bus rammed into a tree standing by the road side. CWs 2 to 10, who were passengers in the bus and CWs 11 and 12 -the mahouts of the elephant got injured. A five year old boy named Sinil, who was also the traveling in that bus, sustained serious injuries to which he succumbed. The accused drove the bus at high speed, with the knowledge that his rash and negligence act was likely to cause death.

3. The accused was charge sheeted by C.I of Police Kunnamkulam, for offences punishable under Section 304 Part-II, 304- A, 308 and 429 of I.P.C.

4. On committal, the accused appeared before the trial court and charge was framed against him, under Sections 304 Part-II, 304- A, 308 and 429 of IPC , to which he pleaded not guilty and claimed to be tried. PWs 1 to 12 were examined and Exts.P1 to P19 were marked from the side of prosecution. On closure of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. No defence evidence was adduced.

5. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found that the offence committed by the accused would fall under Sections 304A and 429 of IPC , and not under Sections 304 Part-II and 308 of . So he was acquitted for the offences punishable under Sections 304 Part-II and 308 of and he was convicted and sentenced under section 304 A and 429 of . He was sentenced to undergo rigorous imprisonment for one year and fine of Rs.3,000/-, with a default sentence of simple imprisonment for two months under Section 304A of , and rigorous imprisonment for two years and fine of Rs.3,000/-, with a default sentence of simple imprisonment for two months under Section 429 of . Aggrieved by the conviction and sentence, the accused has preferred this appeal.

6. Heard learned counsel for the appellant and learned Public Prosecutor.

7. The case of the appellant was that, he was not the driver of the bus KL.8F.1555, as on the date of accident. But the evidence of PWs 1 to 3 was sufficient enough show that, he was the driver of the offending bus at the time of the incident. Moreover PW7, the conductor of that bus also identified the accused as the driver of that bus at the time of incident. Ext.P13 (a), the trip sheet of the bus as on the date of incident i.e.03.05.2001 shows the name of the appellant herein as its driver. So there is no dispute with regard to the identity of the driver who was driving the offending bus, at the time of the accident.

8. Regarding his rash and negligent driving also, the testimony of PWs 1 to 3 are sufficient to show that, he was driving the bus in a rash and negligent manner. An elephant walking through the front, with a reflector on its back, was hit by that bus, itself is sufficient to infer the rashness and negligence of the appellant. The appellant has no case that, there was any circumstance, under which he was prevented from noticing the elephant walking through the front side. The testimony of witnesses, as well as Ext.P15 scene mahazar will show that, t