IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940 Crl.Rev.Pet.No. 2162 of 2013 AGAINST THE ORDER IN CRA 182/2012 of ADDL.D.C.&

MACT,PATHANAMTHITTA DATED 24-08-2013 AGAINST THE ORDER IN CC 989/2005 of J.M.F.C.,THIRUVALLA REVISION PETITIONER:

SAJEEV AGED 51 YEARS S/O.VELAYUDHAN, MADANVILA HOUSE, PERUMPUZHACHERI MURI, PUNNAMUKKU, ELAMPALLOOR VILLAGE, KOLLAM TALUK AND DISTRICT.

BY ADVS.

SRI.R.MOHANA BABU SRI.S.SREEDUTT RESPONDENT:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

SENIOR PUBLIC PROSECUTOR SRI. C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON

12.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

In C.C. No. 989 of 2005 Judicial Magistrate of First Class, Thiruvalla convicted the petitioner of the offences under Sections 279, 304A, 337 and 338 IPC. For the offence under Section 279 IPC he was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 750/-, for the offence under Section 337 IPC to undergo simple imprisonment for three months and to pay a fine of Rs. 500/-, for the offence under Section 338 IPC to undergo simple imprisonment for one year and to pay a fine of Rs. 1,000/- and for the offence under Section 304 A IPC to undergo simple imprisonment for two years and to pay a fine of Rs. 5,000/-. It is further directed that in default of payment of the fine the petitioner shall undergo simple imprisonment for three months. Criminal Appeal No. 182 of 2012 filed by the petitioner was dismissed. The order of conviction and the order of sentence are challenged in this revision petition. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor .

3. The allegation against the petitioner was that on

07.05.2005 at about 4.50p.m he drove a K.S.R.T.C bus in a rash and negligent manner along a public road which caused to hit on an autorikshaw which was coming from the opposite direction. Two passengers in the autorikshaw lost their lives. Another passenger and the driver sustained injuries.

4. According to the prosecution the K.S.R.T.C bus of the petitioner was going from south to north and the autorikshaw, was coming from the opposite direction. The accident happened on the eastern side of the road. If that is true, the bus of which the petitioner was the driver was on its wrong side. PW2, who was the driver of the autorikshaw and PW3, who was one of the passengers in it, deposed that the accident took place on the wrong side of the bus. But they did not give the details. Exhibit P11 is the mahazar prepared by the investigating officer of the place of occurrence. It is said that the place of occurrence was pointed out to the investigating officer by one Raju alias Rajendran. But this Raju was not examined as a witness. It is not known how he came to know about the place of occurrence.

5. PW2, the driver of the autorikshaw, deposed in the earlier part of his examination in chief that the accident happened when the petitioner attempted to over take another vehicle. But subsequently in the examination in chief itself he deposed that it was the over speed of the bus which caused the accident. Thus he himself had no consistent case. PW3, who was one of the passengers in the autorikshaw deposed that it was over speed of the bus that caused the accident. There is no mention in his evidence that the bus attempted to over take another vehicle. So the evidence of PW2 and PW3 on this material aspect is not consistent.

6. The prosecution did not produce the report of the Motor Vehicle Inspector who inspected the bus involved in the accident. So it cannot be said that it was not due to the mechanical defect of the bus the accident happened.

7. Going by the prosecution case, the bus and the autorikshaw were going in opposite directions, when they collided. PW2, driver of the vehicle, did not sustain any