IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 14.12.2016 PRONOUNCED ON : 11.01.2017 CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Revision No.232 of 2011 C.Gunasekaran Vs The State rep. By The Inspector of Police, Vennanthur Police Station, Rasipuram Taluk, Namakkal.
.. Petitioner (Crime No.495 of 2007) .. Respondent Prayer:-
This Criminal revision is filed under Section 397 & 401 of Cr.P.C., against the judgment made in C.A.No.90 of 2009 on the file of Additional Sessions Judge, Fast Track Court, Namakkal dated 19.11.2010 confirming the judgment of the learned Judicial Magistrate, Rasipuram, Nammakkal District in C.C.No.73 of 2008 dated 24.09.2009.
For petitioner : Mr.G.K.R.Pandian For Respondent : Mr.M.F.Shabana, Government Advocate (Crl. Side)
O R D E R
The petitioner is the sole accused in C.C.No.73 of 2008 on the file of the Judicial Magistrate Court, Rasipuram. He stood charged for the offences under Sections 279, 338 (2 counts) and 304(A) IPC. The trial Court, by judgment dated 24.09.2009, convicted the petitioner/accused under Section 304(A) IPC and sentenced him to undergo rigorous imprisonment for 6 months and also imposed a fine of Rs.3000/- in default to undergo simple imprisonment for 3 months and convicted him under Section 279 IPC and imposed a fine of Rs.500/ in default to undergo simple imprisonment for one month and convicted under Section 338(2 counts) and imposed a fine of Rs.1000/- each in default to undergo simple imprisonment for two months.
2. Challenging the above said conviction and sentence, the petitioner/accused file an appeal in C.A.No.90 of 2009 on the file of the Additional District and Sessions Court (Fast Track Court), Namakkal. The appellate court dismissed the appeal and confirmed the conviction and sentence imposed by the trial court.
3. Challenging the said conviction and sentence, the present revision has been filed.
4. The case of the prosecution in brief is as follows:
On 10.10.2007, at about 5.45 p.m., P.W.1 along with P.W.2 and the deceased one Mohan were going in a TVS-M-80 Moped from Rasipuram to Vennathur. When they came near Attaiyampatti Forest Extension Center, the offending bus bearing registration No. TN 38 AA 3333, which was driven by the petitioner/accused and came in the opposite direction. While overtaking the another vehicle, the offending vehicle dashed against the moped and the rear wheel of the bus ran over the deceased Mohan and P.Ws.1 and 2 were also injured in this case. Immediately, they were taken to Government Hospital, Rasipuram .
5. On receipt of a memo from the hospital, P.W.18, the Sub-Inspector of Police, in the respondent police station, went to the hospital and recorded the statement of P.W.1 and based on that, he registered a case in Crime No.495 of 2007, for the offences under Sections 279, 337 and 304(A) IPC.
6. On receipt of the First Information Report (Ex.P.11), P.W.19, the Inspector of Police, commenced investigation, proceeded to the scene of occurrence, where he prepared observation mahazar and drew rough sketch. He conducted inquest on the dead body of the deceased at the hospital and sent the dead body for autopsy. P.W.14, Doctor, conducted postmortem/autopsy on the dead body of the deceased and issued postmortem certificate, Ex.P.6. He has also given opinion that the deceased would have died due to shock and hemorrhage due to multiple injuries.
7. P.W.9, Doctor, working in the hospital, examined P.Ws.1 and 2 and gave accident registers and has also given a opinion that injuries sustained by P.Ws.1 and 2 were serious in nature. Then, P.W.19, sent the vehicle for inspection to the Motor Vehicle Inspector. The Motor Vehicle Inspector,P.W.17, inspected the vehicle and found that the right hand side pumper of the bus was damaged and there is no mechanical defect in the bus and he has also inspected the two wheeler and found that front mud card, left indicator assembly were damaged. He has also given a certificate that there is no mechanical defect in the vehicle. P.W.19 arrested the accused and after completing investigation, he laid the charge sheet.
8. Based on the above materials, the trial Court framed the charges as detailed in the first paragraph of this judgment against the accused. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 19 witnesses were examined and 13 documents were exhibited.
9. Out of the witnesses examined, P.W.1 and P.W.2 are the injured eye-witnesses to the occurrence. According to P.W.1, on the date of occurrence, he along with P.W.2 and the deceased were going in a Bajaj-M-80 Moped. At that time, the offending bus, came in the opposite direction, being driven in a high speed and while overtaking another vehicle, dashed against the Bajaj-M-80 moped and the deceased Mohan fell down and the rear wheel of the bus ran over him and both P.W.1 and P.W.2 have also sustained injury and they were admitted in the hospital.
10. P.W.1 also admitted that he has no driving licence.
P.W.2 is an yet another injured witness. According to him, while all the 3 persons were going in a moped, the offending bus came in the opposite direction. While the bus overtaking another vehicle, hit the moped and the rear wheel of the bus ran over the deceased and the deceased died on the spot. In the said occurrence, he and P.W.1 also sustained injury. P.Ws.3 and 4 have turned hostile. P.Ws.6,7, 8 are hearsay witnesses and they have not supported the prosecution case in any way. P.W.12 was working as a conductor in the offending bus and he turned hostile. P.W.17 is the Motor Vehicle Inspector, who inspected both the vehicles and gave the reports. P.W.18, Sub-Inspector of Police, has spoken about the registration of the case. P.W.19, Inspector of Police has spoken about the conducting of investigation and filing of charge sheet.
11. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not chose to examine any witness or mark any documents.
12. Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment. Challenging the same, the appellant/accused is before this Court with this Criminal Appeal.
13. We have heard Mr.G.K.R.Pandian, learned counsel appearing for the appellant and Mrs.M.F.Shabona, learned Gov.Adv. (Crl.Side) appearing for the State and we have also perused the records carefully.
14. P.W.1 and P.W.2 are the injured eye-witnesses to the occurrence. According to P.W.1, when he along with P.W.1 and the deceased were travelling in a Bajaj M-80 Moped , the offending bus, driven by the petitioner/accused came in a high speed. While the offending bus overtaking another vehicle, dashed against the moped and the deceased fell down, and the rear wheel of the bus ran over the deceased. He has also admitted in the cross examination that he does not have licence to drive the moped.
15. P.W.2 is another injured witness. Even according to him, the bus being driven by the petitioner came in the opposite direction and while overtaking another bus dashed against the moped and caused the death of the deceased and also injured them. But, in the cross examination, he has stated that since he was sitting in the middle of the moped, he has not noticed how the vehicle was driven. Except that, there is no other eye-witness available. Since both P.Ws.1 and 2 are interested witnesses, their evidence requires close scrutiny.
16. From the evidence of P.Ws.1 and 2, it could be seen that there are 3 persons, riding in a Bajaj M-80 Moped and P.W.1, who has driven the moped does not have any driving license. P.W.1 in his evidence has only stated that the bus came in a high speed and dashed against the moped, except that bare statement of P.W.1, no attempt has been made to establish that there was rash and negligent act on the part of the petitioner/accused.
17. The Hon'ble Supreme court in a judgment reported in 1998(8) SCC 493 has held as follows :
“ 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. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception 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”.
18. In the instant case also, except the evidence of P.Ws1 and 2 that the bus was driven in a high speed, there is no evidence to establish that the vehicle has been driven by the petitioner/accused in a rash and negligent manner. Apart from that, admittedly, there are 3 persons, were travelling in the Bajaj M-80- Moped, and the P.W.1, who has driven the moped has also admitted that he has no driving license to drive the moped. A perusal of the Rough Skech, which was prepared in the scene of occurrence, it could be seen that the occurrence had taken place at the middle of the road. Hence, the evidence of P.W.1 and P.W.2 that the offending bus, while overtaking another bus, dashed against the moped in the right side of the road also cannot be accepted.
19. In view of these discussions, this Court has no option then to hold that the prosecution has failed to prove the case against the accused beyond all reasonable doubt and the courts below without considering the evidence in proper perspective has erroneously came to a conclusion that the petitioner/accused has committed the crime and convicted the petitioner. In the above circumstances, the petitioner is entitled for acquittal.
20. In the result, the revision case is allowed and the judgment of the courts below are set aside and the petitioner/accused is acquitted from all the charges. Fine amount, if any, paid by him shall be refunded to him. Bail bond, if any, shall stand cancelled.
11.01.2017 mrp Index:Yes To
1. Additional District and Sessions Judge, Fast Track Court, Namakkal.
2. The Judicial Magistrate, Rasipuram, Namakkal District.
V.BHARATHIDASAN, J.
mrp Pre-delivery Order in Crl.R.C.No.232 of 2011 11.01.2017 http://www.judis.nic.in