Madras High Court
J.Joshwa Kiruban : Revision vs State Rep. Through on 30 April, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.04.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.547 of 2018
J.Joshwa Kiruban : Revision Petitioner/
Appellant/Accused
Vs.
State rep. through
The Inspector of Police,
Fort Police Station,
Traffic North Investigation,
Trichy.
(Crime No.165 of 2012) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Sections
397 r/w 401 of Criminal Procedure Code, against the judgment
passed in C.A No.81 of 2017 by the Principal Sessions Judge,
Trichy, dated 07.07.2018, confirming the judgment passed in C.C
No.173 of 2012, dated 19.08.2017, by the Judicial Magistrate No.1,
Trichy.
For Revision Petitioner : Mr.C.Vakeeswaran
For Respondent : Mr.A.Robinson
Government Advocate
(Criminal side)
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This Criminal Revision is directed against the judgment
passed in C.A No.81 of 2017 by the Principal Sessions Judge,
Trichy, dated 07.07.2018, confirming the judgment passed in C.C
No.173 of 2012, dated 19.08.2017, by the Judicial Magistrate No.1,
Trichy.
2.The case of the prosecution is that on 02.06.2012 at
about 0.45 hours in the early morning, the deceased Saranraj was
walking towards west to east, on the left side of Vayalur Road, near
Ladies hostel, at that time, the accused drive the Hero Honda
Passion Two Wheeler TN-45-AS-3596 in a rash and negligent
manner and dashed behind the said Saranraj. In that process, the
deceased Saranraj fell down and sustained grievous injuries on his
head and right leg and despite of treatment, he died at the
Government Hospital, Trichy. In this connection, the Inspector of
Police, Traffic North Investigation Police Station, Trichy has filed a
final report against the accused for the offence punishable under
section 304(A) IPC and Section 196 of M.V Act.
https://www.mhc.tn.gov.in/judis/
3.In the trial court, 4 witnesses were examined and 10
Exhibits were marked on the side of the prosecution. When the
accused was questioned about the incriminating circumstances, he
denied the same. The trial court convicted the revision petitioner
for the offence under Section 304(A) IPC and sentenced him to
undergo 4 months simple imprisonment and for the offence under
section 196 of M.V Act imposed a fine of Rs.1,000/-, in default to
undergo 1 month simple imprisonment. Aggrieved by the conviction
and sentence passed by the trial court, the revision petitioner filed
an appeal in C.A.No.81 of 2017, which was heard by the Principal
Sessions Judge, Trichy. The first appellate Court also confirmed the
judgment of conviction and sentence passed by the trial court.
Aggrieved over the same, the petitioner is before this court.
4.The learned counsel for the revision petitioner/accused
submitted that the prosecution has failed to establish the
ingredients required for all the offences with which he stood
charged and convicted him for the said offences 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 vehicle and the eye
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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.
5.On the other hand, the learned Government Advocate
(Criminal side) appearing for the respondent/State submitted that
the both the courts below appreciated the evidence in a proper
manner and believed the evidence of the eye witnesses and having
regard to the nature of the offences, 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
statement Ex.P1. PW2 is accompanied with the deceased Saranraj.
PW1 and PW2 categorically deposed that at the time of accident,
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they were walking along with deceased Saranraj on the left side of
the road, at that time, the accused has drove his two wheeler
TN-45-AS-3596 in a speedy manner and hit against the deceased.
8.In this case, PW1 and PW2 are cited as eye witness and
they deposed in their evidence that the driver of the vehicle drove
his vehicle in a speed manner, but they have not stated that the
driver of the vehicle drove his vehicle in a rash and negligent
manner. Further, PW2 categorically admitted during his cross
examination that he did not know about the manner of accident and
he has also fairly admitted that he has not made any signature in
the Mahazar.
9.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
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.
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10.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:-
“19.In State of Karnataka vs.
Sathish (1998)8 SCC 493), in a road
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:-
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
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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
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
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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
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:
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“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.”
11.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.
12.For all the reasons stated above, this court is of the
considered view that the prosecution has not proved the case
beyond reasonable doubt.
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13.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 charges 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.
30.04.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI,J
er
To,
1.The Principal District and Sessions Judge,
Trichy.
2.The Judicial Magistrate No.1, Trichy.
Judgment made in
Crl.R.C(MD)No.547 of 2018
30.04.2021
https://www.mhc.tn.gov.in/judis/
https://www.mhc.tn.gov.in/judis/
