Crl.R.C.No.1052 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.09.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1052 of 2018
Muralikrishnan ... Petitioner
Vs.
State, represented by
The Inspector of Police,
Koradacherri Police Station,
Koradacherri,
Tiruvarur District.
(Crime No.263/2010) ... Respondent
Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of
Criminal Procedure Code, to call for entire records and set aside the
conviction under Section 304A of IPC and the sentence of 2 years simple
imprisonment and fine of Rs.5,000/- in default to undergo simple
imprisonment for 1 month passed in the judgment dated 30.07.2018 made in
C.A.No.44 of 2017 by the Court of District and Sessions Judge, Tiruvarur
confirming the order dated 13.11.2017 made in C.C.No.374 of 2012 on the
file of the Court of Judicial Magistrate, Tiruvarur.
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1052 of 2018
For Petitioner : Mr. N.S. Sivakumar
For Respondent : Mr. N.S. Suganthan,
Government Advocate (Crl.Side)
ORDER
The revision petitioner is the driver of TATA Sumo Car bearing Registration No.TN-66-7868. On 18.09.2010 at about 7.00 am in the morning, along Tiruvarur to Thanjavur main road near Ammayappan Mela Street, he hit a Bajaj Pulsar, two wheeler and one Sivagami, who took protection behind the two wheeler, on seeing the rash driving of the TATA Sumo. The said Sivagami was immediately taken to Tiruvarur Medical College Hospital but she was declared dead.
2. On completion of investigation, final report filed against the petitioner for offence under Section 304(A) IPC. The prosecution examined 7 witnesses and marked 8 exhibits. P.W.1, Govindasamy, S/o Pakrisamy is the husband of the deceased, was running a tea shop near the accident spot. The residence of the deceased is opposite direction of the road. 2/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018
3. The case of the prosecution is that while the deceased was walking from East to West on the southern side of the road, TATA Sumo driven by the petitioner in a rash and negligent manner, with uncontrollable speed, dashed the Bajaj Pulsar, two wheeler which was parked on the left side of the road margin and thereafter, hit the deceased, Sivagami.
3(i). The trial Court on appreciating the evidence, had convicted the petitioner to undergo two years simple imprisonment and fine of Rs.5,000/- in default, one month simple imprisonment for offence under Section 304(A) IPC. The lower appellate Court on re-appreciating the evidence, dismissed the appeal filed by the petitioner.
4. In the revision, it is contended that from the cross examination of the witnesses, it has been proved that these witnesses are not direct eye witnesses to the occurrence but they are only interested witnesses who had reached the spot of accident, after the accident occurred. Therefore, their evidence is not trustworthy.
4(i). Further, it is also contended that the damage caused to the two wheeler as well as the TATA Sumo, the rash and negligence of the driver 3/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018 cannot be presumed, the principle of res ipsa loquitor will not apply in case of road accident.
4(ii). Learned counsel for the petitioner would also relied upon the judgment of the Hon'ble Supreme Court rendered in State of Karnataka Vs. Satish reported in (1998) 8 SCC 493 wherein, the Hon'ble Supreme Court has distinguished the difference between “high speed” and “negligence” and has observed that they are not interchangeable.
5. Learned counsel appearing for the petitioner would submit that none of the witnesses had spoken about the rash or negligent driving of the TATA Sumo and therefore, the conviction has to be set aside.
6. Further, referring the sketch marked as Ex.P5, the learned counsel for the petitioner would submit that the metal road is 25 feet width with mud road margin of 5 feet on either side. Therefore, even if the prosecution case is accepted, the TATA Sumo Car which was proceeding from West to East in the extreme left, had been obstructed by a parked two wheeler in the mid of the road which has caused the accident and not the 4/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018 negligence. Hence, the driver of the TATA Sumo cannot be attributed any negligence or rashness.
7. In support of the submission, the learned counsel relied upon the judgment of this Court rendered in Mani Vs. State reported in 2022 (2) MLJ (Criminal) 463.
8. Per contra, the learned Government Advocate (Crl.Side) submitted that the petitioner who was driving the TATA Sumo Car in an uncontrollable speed, rashly hit a parked two wheeler and thereafter, hit the victim lady, who was in the road margin. The contradictions of the witnesses pointed out by the petitioner counsel regarding whether she was walking along with the road or she was standing behind the two wheeler are not of much significance, since the fact that the vehicle first hit the parked two wheeler and thereafter, the lady, is proved without any contradiction.
9. The Motor Vehicle Inspector Report regarding the damage on the front left side bumper of the TATA Sumo proves the velocity of the 5/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018 impact of the two wheeler and the TATA Sumo. If the driver of the TATA Sumo was diligent enough, he would have at least stopped the vehicle immediately after hitting the two wheeler. Contrarily, due to his rash driving, he was not able to control his vehicle and stop the vehicle. After hitting the two wheeler and after running over the victim lady, the vehicle dashed on the extreme left of the road.
10. This Court, on considering the evidence, particularly, the evidence of P.W.1 and P.W.2 who were in the spot of the accident, clearly prove that the accident has occurred due to the rash driving of the petitioner. They are not interested witnesses as contended by the learned counsel for the petitioner. P.W.1, though husband of the deceased, who is running a tea shop and his house is opposite side of the road, his wife with an intention to come to the tea shop run by her husband was walking along the left side of the road margin from East to West. At that time, the TATA Sumo Car was proceeding from West to East had first hit the two wheeler and thereafter, the victim. This has been seen by P.W.1 who is running tea shop and there is nothing to doubt his evidence about witnessing the accident. 6/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018
11. Similarly, P.W.2, Govindasamy, who was in the tea shop at that time to have tea, had witnessed the occurrence and he is also signatory to the observation mahazar which is marked as Ex.P.2. The sketch marked as Ex.P5 also had credence to the testimony of P.W.1 and P.W.2 and other witnesses. The minor contradiction of the eye witnesses are not very relevant to suspect the case of the prosecution.
12. Hence, the conviction of the Courts below is confirmed. As far as the term of imprisonment is concern, this Court is of the view that instead of two years the term of imprisonment is modified to one year simple imprisonment and fine of Rs.5,000/- in default one month simple imprisonment for offence under Section 304(A) IPC.
13. With the above modification, this Criminal Revision Case is partly allowed.
05.09.2022 AT Index : Yes/No Speaking / Non-speaking 7/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1052 of 2018 Dr.G.JAYACHANDRAN,J.
AT To
1.The District and Sessions Judge, Tiruvarur.
2.The Judicial Magistrate, Tiruvarur.
3.The Inspector of Police, Koradacherri Police Station, Koradacherri, Tiruvarur District.
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