This Criminal Revision is directed against the judgment made in C.A.No.23 of 2009, dated 03.12.2009 on the file of the Fast Track Court, Pudukkottai, confirming the Judgment of the trial court.
2.The case of the prosecution is that on 17.03.2006 at 13.50 hours, when the deceased Jeyalakshmi was trying to go inside the bus through front side entrance of the bus, the driver of the bus had suddenly taken the bus in a negligent manner and due to which, the left side of the bus wheel run over the deceased and she died on the spot. The Inspector of Police attached to Gandarvakkottai Police Station filed a final report under
Section 304(A) IPC against the accused examining the witnesses.
3.In the trial court, 8 witnesses were examined and 7 documents were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner/sole accused for the offence under
Section 304(A) IPC and sentenced him to undergo SI for 6 months and to pay a fine of Rs.5,000/-, in default to undergo SI for http://www.judis.nic.in 3 3 months. Aggrieved by the judgment passed by the trial court, the revision petitioner/accused filed an appeal in C.A.No.47 of 2007, which was heard by the Additional Sessions Judge, Fast Track Court No.2, Thoothukudi. The first appellate Court confirmed the findings of the trial court. Hence, this criminal revision.
4.The learned counsel for the revision petitioner/accused submitted that the prosecution has failed to establish the ingredients required for an offence under
Section 304-A IPC and none of the witnesses have spoken that the accused has driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the offending vehicle and the eye witnesses are interested witnesses and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed. The learned counsel for the revision petitioner has placed reliance upon the judgment reported in 2017-1-L.W.(Crl.) 160 [M.Subramani vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District], in support of his contention.
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5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that first appellate court appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the revision petitioner for rash and negligent driving of the vehicle and passed proper sentence, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed.
6.Heard both sides and perused the materials available on record.
7.PW1 is the complainant and he gave the complaint. PW1 in his complaint stated that on 17.03.2006, he and his brother's wife, Pushpa Valli and Jayalakshmi came to Peramballur to attend Kumbabishegam and at 1.00 pm, they came to the bus stand to go to their native place, at the time, the bus proceeded to Mannarkudi came and Rajathi, Pushpavalli and Jeyalakshmi tried to get into the bus and he stood outside the bus and when Jayalakshmi was trying to get into the bus, at that time, the accused http://www.judis.nic.in 5 suddenly took the bus in a rash and negligent manner and due to it, Jeyalakshmi fell down and the back of the stair case of the bus dashed against the deceased and she sustained injuries and thereafter, Jeyalakshmi was taken to Tanjore Medical College Hospital, but the Doctor declared that Jayalakshmi was dead and then, he gave the complaint statement to the police.
8.PW1 during his evidence stated that on 17.03.2006, he and his family members went to worship Veerakaliamman temple at Gandarvakottai and after worshipping he and his family members came to Gandarvakottai bus stand to go to their native place and at 1.30 pm, a private bus came and some of his family members got into the but from the back side entrance and the deceased Jayalakshmi lastly attempted to get into the front entrance of the bus and at that time, the accused suddenly started the bus in a carelessness manner and due to it, she fell down from the bus and back side of the bus wheel climbed over the body of the deceased and the deceased was taken to the Tanjore Government Hospital where the Doctor declared that the injured Jayalakshmi was dead. http://www.judis.nic.in 6
9.PW1 in Ex.P1 stated that when the deceased Jeyalakshmi attempted to get into the bus, the driver of the bus started the bus in a negligent manner and due to it, she fell down and the stair case on the back side of the bus hit against the deceased and due to it, she sustained injuries. But PW1 during his evidence stated that when the deceased attempted to get into the bus through the front side entrance, the accused started the bus and due to it, she fell down and the back wheel of the bus climbed on the body of the deceased and the deceased sustained injured. It was not explained on the side of the prosecution as to whether the deceased sustained injuries due to the stair case of the bus hit against her or due to climbing of the back wheel of the bus over the body of the deceased.
10In this case, PW1 in his complaint stated that when the deceased Jeyalakshmi got into the bus, he was standing in front of the bus. But during his evidence, he has stated that when the deceased attempted to get into the bus, he entered into the bus from back side of the bus.
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11.It is to be noted here that when PW1 got into the bus from the back side, there is no chance for him to see the occurrence. Further, PW1 during his chief examination stated that tz;o bry;Yk; nghJ b$ayl;Rkp jtwp tpGe;Jtpl;lhh;. Hence, it reveals the negligence on the part of the deceased.
12.PW2 and PW3 are cited as eye witnesses. PW2 and PW3 have not stated during their evidence that the driver of the bus drove his vehicle in a rash and negligent manner. PW2 in her chief examination stated that she and PW3 from the front side entrance got into the bus and after sometime, the deceased tried to get down into the bus, at the time, the driver had suddenly started the bus and due to which, she fell down and sustained injuries.
13.Further, PW1 stated that after the occurrence, he gave Ex.P1 complaint. But PW2 during his cross examination stated that rk;gtk; ele;jt[ld; fe;jth;tnfhl;il nghyPrhh; mq;F te;jhh;fs; mq;F nghyPrhh; tprhhpj;J Jiuuh$#tplk; ifbaGj;J thq;fpf; bfhz;lhh;fs;.”From the cross examination of PW2, it reveals that before registering the case, investigation was done. Hence, it creates doubt about Ex.P1 complaint statement.
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14.PW7 is the Sub Inspector of Police, who registered the case and sent the copy of the FIR to the concerned Magistrate Court. PW7 during his chief examination has stated that PW1 came to the Police station and gave Ex.P1 complaint. But PW7 during his cross examination stated as follows:-
“tpgj;jpw;F gpd;dh; g[fhh;jhuh; neuoahf fhty; epiyak; te;J g[fhh; bfhLf;ftpy;iy g[fhh; thf;FK:yj;jpd; gpd;gw [ gof;fl;L ,oj;J fhak; Vw;gl;ljhf g[fhh;jhuh; brhy;ypa[s;shh;
vd;why; rhpjhd;.”
15.At this juncture, it is necessary to refer the cross examination of PW8, who is the Investigating Officer. As per the prosecution case, the accused drove the vehicle in a rash and negligent manner. But PW8 during his cross examination stated that “ngUe;J fpsk;gk [ ; nghJ nghf;Ftuj;J kpFe;j gFjp vd;gjhy; bkJthfj;jhd; ngUe;ij vLj;Jr; bry;yKoa[k; vd;why; rhpjhd;.”
16.It is mainly argued on the side of the revision petitioner/accused that the oral evidence of the prosecution witnesses was not proved the rash and negligent driving of the http://www.judis.nic.in 9 accused and there are contradictions between the oral evidence of the prosecution witnesses and there can be no general presumption that a person should have driven a vehicle in a rash and negligent manner, merely because there was an accident.
17.At this juncture, it is relevant to refer the decision of this court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District), wherein this court has held as follows:-
accident where the accused was prosecuted under
Section 304-A IPC, one of the witness had stated that the bus drive came driven the bus at a high speed. The Hon'ble Apex Court held that it would not satisfy the requirement of the driver driving the vehicle in a rash and negligent manner as required under
Section 304-A IPC and acquitted the accused.”
20.In this respect, the following observations made by the Hon'ble Supreme Court in SATISH (supra) are relevant here to note:-
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3.Both the Trial Court and the Appellate Court held the respondent guilty for offences under
Sections 337,338 and
304-A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the Trial Court or by the First Appellate Court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the Courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
4.Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception http://www.judis.nic.in 11 pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
21.Subsequently, in Abdul Subhan vs. State (NCT of Delhi) {2007 Cri.L.J. 1089}, in a road accident case for an offence under
Section 304-A IPC, the only available evidence of an Head Constable is that the bus driver had driven the bus fastly. The Delhi High Court relying on the Hon'ble Apex Court decision in SATISH (supra) held that the bus driver cannot be held to have drove the bus in a rash and negligent manner.
22.In State vs. Avadh Kishore {Crl.L.P. No.213 of 2007 dated 30.1.2009 (Delhi High Court)}, the Delhi High Court http://www.judis.nic.in 12 reiterated its earlier view in ABDUL SUBHAN (supra).
23.Recently in Puttaiah @ Mahesh vs. State by Rural Police {Crl. Review Petition No.1317 of 2010 dated 4.3.2016 (Karnataka High Court)}, the Karnataka High Court held as under:
“In this view of the matter, both the Trial Court as well as the First Appellate Court have not assessed the oral and documentary evidence in right perspective. Both the Courts should have navigated through the evidence of material witnesses cautiously. Glaring inconsistencies have been brushed aside as minor variations. They have adopted wrong approach to the real state of affairs and have not properly scanned the evidence. Both the Courts have forgotten that the initial burden was on the prosecution to establish the charge of rashness or negligence beyond reasonable doubt. Thus, the judgments of both the Courts suffer from perversity and illegality. Hence, this Court is of the opinion that the revision petition is to be allowed.” http://www.judis.nic.in 13
18.On coming to the instant case on hand, the prosecution witnesses have not stated that the accident occurred due to the rash and negligent driving of the accused.
19.For all the reasons stated above, this court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and the impugned judgment of conviction and sentence are liable to be set aside.
20.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charge levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
02.08.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 14 T.KRISHNAVALLI,J er To,
1.The Fast Track Court, Pudukkottai.
2.The Judicial Magistrate, Pudukkottai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.R.C(MD)No.482 of 2010 02.08.2018 http://www.judis.nic.in 15 http://www.judis.nic.in