Concurrent findings of lower courts upheld upon sufficient evidence proving negligence leading to injury and death; substantive sentence reduced due to prolonged appeal.

O R D E R

This revision petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Sections 279 , 338 and 304A of the IPC .

2. The revision petitioner is the accused in C.C.No.114 of 2001 on the files of the Judicial First Class Magistrate Court-I, Thamarassery (for short, 'the trial court'). He faced trial for the offences punishable under Sections 279 , 338 and

304A of the IPC .

3. The prosecution case in short is that on 05.11.2000 at 2.50 p.m., the petitioner drove the lorry bearing registration No.KL-11/4119 in a rash and negligent manner so as to endanger human life without taking due care and caution and collided with KSRTC bus bearing registration No.KL-15/2942 and PWs 1 and 2 and others including one Muhammed Koya sustained injuries and Muhammed Koya succumbed to the injuries later on.

4. Before the trial court, on the side of the prosecution, PWs 1 to 16 were examined and Exts.P1 to P13 were marked. On the side of the defence, DW1 was examined. No defence evidence was adduced. After trial, the trial court found the petitioner guilty of the offences punishable under Sections 279 , 338 and 304A of the IPC and he was convicted for the said offences. He was sentenced to undergo simple imprisonment for six months each under and 338 of the and simple imprisonment for one year under Section 304A of the . The substantive sentence was ordered to run concurrently.

5. The petitioner challenged the conviction and sentence of the trial court before the Sessions Court, Kozhikode (for short, the appellate court) in Crl.A.No.105 of 2003. The Sessions Court dismissed the appeal, confirming the conviction and sentence. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court.

6. I have heard Sri.Sunny Mathew, the learned counsel for the petitioner and Sri.E.C.Bineesh, the learned Senior Public Prosecutor.

7. The learned counsel appearing for the petitioner impeached the findings of the trial court as well as the appellate court on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the identity of the petitioner has not been properly proved. The learned counsel further submitted that in fact the accident was due to the negligence of the KSRTC bus driver who was examined as PW8 and both the courts failed to appreciate the evidence of DW1 in this regard in its correct perspective. The learned counsel also submitted that at any rate the substantive sentence imposed is excessive.

8. On the other hand, the learned Public Prosecutor supported the findings and verdict handed down by the trial court and confirmed by the appellate court and argued that necessary ingredients of Sections 279 , 338 and 304A of the IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt.

9. PWs 1 and 2 are the injured and were travelling in the KSRTC bus. PW3 is an independent occurrence witness. PW8 is the driver of the KSRTC bus. The prosecution mainly relied on the evidence of PWs 1 to 3 and 8 to prove the incident and to fix the culpability on the accused. The prosecution case is that the petitioner negligently took reverse of the vehicle he drove and hit against the KSRTC bus. According to the defence version, the vehicle driven by the petitioner was in stationary and it was the KSRTC bus which hit the lorry which was lying stationary. PW1, PW2 and PW3 consistently gave evidence regarding the manner in which the accident had taken place. They clearly deposed that the accident took place on account of the rash and negligent driving of the