THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.980 of 2007 Kodhandaraman ... Appellant vs.
State,by The Inspector of Police, Suloor Police Station, Coimbatore, ... Respondent (Crime No.731 of 2006) Criminal appeal preferred under Section 374(2) Cr.P.C., against the conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track court, Coimbatore in S.c.No.118 of 2007, dated 17.10.2007.
For Appellant : Mr.B.Vijayakumar For Respondent : Mrs.M.F.Shobana, Gov. Adv. (Crl. Side) JUDGMENT The sole accused in S.C.No.118 of 2007 on the file of the learned Additional District and Sessions Court, Coimbatore at Tirupur, is the appellant herein. He stood charged for an offence under Section 304(ii) IPC. The trial Court, by judgment dated 17.10.2007, convicted the accused under Section 304(A) IPC and sentenced him to undergo rigorous imprisonment for 3 years and also awarded compensation of Rs.25,000/- to the wife of the deceased under Section 357(3) Cr.P.C. In default of paying the compensation to undergo rigorous imprisonment for 6 months. Challenging the above said conviction and sentence, the appellant/accused are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
The deceased in this case, one Sivakumar, is the husband of P.W.5. On 23.12.2006, at 6.30 a.m., when the deceased was travelling in his two wheeler in Coimbatore -Trichy main road, near Sinthamanipudur, a lorry bearing registration No.TN 37 As 6741, driven by the accused came in the opposite direction and while overtaking another vehicle in a curve, he lost his control and the lorry dashed against the motorcycle of the deceased, thereafter dashed against the compound wall nearby the road and went inside a garden of one Saravanan, where it dashed against a timber tree and stopped there. In the above accident, the deceased died on the spot.
3. P.W.1, is an eye-witness to the occurrence, who came in a motorcycle behind the deceased and saw the occurrence. Immediately, he lodged a complaint before the respondent police. P.W.7, Inspector of Police, attached to the respondent police, on receipt of the complaint from P.W.1, registered a case in Crime No.731 of 2006 for an offence under Section 304(ii) IPC and prepared First Information Report, Ex.P.8. Then, he proceeded to the scene of occurrence, where he conducted inquest on the dead body of the deceased in the presence of panchayathars and prepared inquest report, Ex.P.9. Thereafter, he sent the dead body for post-mortem to the Government Hospital, Coimbatore. P.W.2, Doctor, working in the hospital, conducted postmortem on the dead body and issued postmortem certificate, Ex.P.3. Thereafter, P.W.3, Motor Vehicle Inspector, inspected the lorry on the spot itself and given a report that there is no mechanical fault in the vehicle and has also given certificate, Ex.P.5. Then, P.W.7, recorded the statement of other witnesses and arrested the accused and seized the vehicle and sent the same to the concerned Court. He then recorded the statement of the doctor, who conducted postmortem and the Motor Vehicle Inspector and after completion of investigation, he filed a charge sheet.
4. Based on the above materials, the Trial Court framed charge for an offence under Section 304(ii) IPC and the accused denied the same as false. In order to prove the case of prosecution, as many as 7 witnesses were examined and 12 documents and one material object was marked.
5. Out of the witnesses examined, P.W.1 is the witness to the occurrence. According to him, on the date of occurrence, at about 6.30 p.m., while he was going in a motorcycle in the Coimbatore-Trichy main road, near A.V.R. House at Sinthamanipudur, the deceased was travelling in an another motorcycle bearing registration No. TN 37 AQ 1845, from east to west. At that time, the offending lorry, driven by the accused, came in the opposite direction from west to east, while overtaking another lorry in a curve, the accused lost his balance and the lorry came to the right side of the road and dashed against the motorcycle driven by the deceased. Thereafter, dashed against the fence of the nearby garden, and went inside the garden, and, the driver ran away from the scene. Immediately, he went to the police station and lodged a complaint, Ex.P.1. He also identified the lorry and the accused.
P.W.2 is the doctor, who conducted postmortem/autopsy on the dead body of the deceased and found the following injuries:
“1. Abrasions 5 x 4 cm left elbow, 4 x 4 cm left upper arm, 2 x 1 cm right elbow and 3 x 2 cm fron tof left knee. Graze abrasion 30 x 10-6 cm seen over left lower leg front and inner aspect.
2. Lacerated injuries seen in the following regions:-
– 3 x 1 cm bone deep seen over right temporal region
– 1 x 1 cm muscle deep seen over right eye brow.
– 1 x 05 cm lip thickness over right side lower lip.
– 3 x 1 cm bone dep over right upper lip.
3. deformity of right leg, on dissection fracture both bones in the lower third with surrounding contusion.
4. on dissection of scalp, sub scalp contusion seen over entire scalp. Fracture all the bones of skull and face into multiple bits. Multiple irregular lacerations seen in the brain matter.
5. on dissection of chest and abdomen, fracture 2nd to 8th ribs on the right side and 2nd to 9th ribs on the left side anteriorly with surrounding intercostal muscles contusion. Multiple lacerations 1 x 05 x 05 cm seen over both lungs. Pleural cavity contains 300 ml of blood with clots.
– Fracture dislocation of L4 and L5 vertebral
– Laceration 8 x 2 x 1 cm seen over the right lobe of the liver
– Fr4acture saero iliac joint and right public rams with tro pubic haematoma. Peritoneal cavity contains 800 ml of blood.
– Urinary bladder contused. “ He issued postmortem certificate, Ex.P.3 and he was of the opinion that the deceased died due to multiple injury, shock and haemorrhage.
6. P.W.3 is the Motorcycle Inspector. He examined the offending lorry as well as the motorcycle of the deceased and has given certificate that there is no mechanical failure in the vehicle. He has also given the certificate Ex.P.5 to that effect. P.W.4 is another eyewitness to the occurrence. According to him, he has also driven a two wheeler in the Trichy-Coimbatore main road, on the western direction, at that time, two lorries were coming and one lorry came in the northern end of the road and the offending lorry came in high speed, after overtaking the other lorry in a curve, offending lorry came to the right side and dashed against the motorcycle of the deceased, then broke the nearby fence of the garden and dashed against the timber tree in the garden, and the deceased died on the spot itself. P.W.5 is wife of the deceased. She came to the scene of occurrence after hearing the news. P.W.6 is the witness to the observation mahazar and roughsketch. P.W.7 is the Inspector of police who working in the respondent police, on receipt of the complaint from P.W.1, he registered a case in Crime No.731 of 2006, for an offence under Section 304(ii) IPC. Thereafter, he went to the scene of occurrence and prepared observation mahazar and drew rough sketch and conducted inquest in the presence of panchayathars and sent the body for postmortem. Then he arrested the accused, recorded the statement of the doctor, who conducted postmortem on the dead body of the deceased, and Motor Vehicle Inspector, after completion of investigation, he laid charge sheet against the accused.
7. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. His defence was total denial. The accused did not examine any witness nor mark any document on his side.
8. Having considered all the above, the Trial Court convicted the accused for the offences as stated in first paragraph of this judgement. Challenging the above conviction and sentence, the accused is before this Court with this appeal.
9. There are two eyewitnesses to the occurrence. P.W.1 and P.W.4, came in a motorcycle behind the deceased. According to them, at that time, the offending lorry which driven by the accused came in the opposite direction and while overtaking another lorry in a curve, the driver lost his balance and the lorry came to the right side of the road and dashed against the motorcycle of the deceased, thereafter broke open the fence in the nearby garden and dashed against the timber tree in the garden and stopped. In fact the deceased was dragged nearly 30 feet away from the place of accident. P.W.1 went to the police station and lodged a complaint. P.Ws.1 and 4 are independent witnesses. There is no reason to disbelieve their evidence. From their evidence, it would be seen that the offending lorry was coming in the opposite direction and by overtaking another lorry in a curve, came to the right end of the road and dashed against the two wheeler of the deceased.
Even thereafter, the accused could not stop the vehicle and he dashed against the nearby fence of a garden and went inside the garden and dashed against the timber tree and stopped.
10. A perusal of Ex.P.10, rough sketch and the report of the Motor Vehicle Inspector, Ex.P.5, it could be seen that the offending lorry came to the extreme right side of the road and dashed against the deceased and went inside a garden. From Ex.P.10, it could be seen that there is a curve in the road, where the appellant overtook another lorry. Since the lorry came in high speed and driven in the negligent manner, the accused/appellant cannot negotiate the curve and came to the right hand side and dashed against the deceased. Hence, from the above circumstances, it is very clear that it is only the appellant/accused who drove the vehicle in a rash and negligent manner and dashed against the innocent deceased.
11. Considering the above circumstances, I am of the considered view that the prosecution has clearly established that it is only this accused/appellant, who has driven the vehicle in a rash and negligent manner, dashed against the two wheeler of the deceased and caused the death of the deceased.
12. So far as the sentence imposed on the appellant/accused is concerned, even though a charge was framed under Section 304(ii) IPC, the trial Court convicted the accused under Section 304(A) IPC and sentenced him to undergo 2 years. The trial court also awarded compensation of Rs.25000/- to the wife of the deceased. There is no bad antecedent against the appellant/accused and he is a poor man, considering the mitigating as well as the aggravating circumstances, and in the interest of justice, the sentence imposed on the appellant is modified to rigorous imprisonment for one year.
13. In the result, the Criminal Appeal is disposed of and the conviction imposed on the appellant for offence under Section 304(A) IPC is confirmed and the sentence is modified to rigorous imprisonment for one year instead rigorous imprisonment for two years. In all other aspects, the judgment of the trial Court is confirmed. The period of sentence already undergone by the appellant is directed to be set off under Section 428 Cr.P.C.
06 .01.2017 mrp To
1. The Additional District and Sessions Judge, Fast Track court, Coimbatore at Tirupur
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN.J., mrp Crl.A.No.980 of 2007 06.01.2017 http://www.judis.nic.in