Madras High Court
Vijayakumar vs State Rep. By on 1 December, 2021
Crl.R.C.No.585 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.585 of 2017
Vijayakumar
... Petitioner
Vs.
State rep. by
Inspector of Police,
H-1, Traffic Investigation,
Vannarapet, Chennai-81.
.. Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C., praying to
call for the records relating to above Criminal Revision and set aside the order
passed by the learned XVIII Additional District and Sessions Judge, Chennai
in Criminal Appeal No.172 of 2016 dated 24.01.2017 confirming the order
passed by the learned III Metropolitan Magistrate, Chennai in C.C.No.24 of
2014 on 19.05.2016.
For Petitioner : Mr.M.Venugopal
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
*****
1/12
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Crl.R.C.No.585 of 2017
ORDER
This Criminal Revision case has been preferred challenging the
judgment of the learned XVIII Additional District and Sessions Judge,
Chennai dated 24.01.2017 made in C.A.No.172 of 2016, confirming the
judgment of the III Metropolitan Magistrate, Chennai dated 19.05.2016 made
in C.C.No.24 of 2014.
2. This case has arisen out of a traffic accident. As per the case of the
prosecution, on 29.09.2014 at about 12.30 hours, the accused was driving a
van bearing Registration No.TN20 CZ 8736 at Dr.Vijayaragavalu Road,
Royapuram. When the van was coming near Barath Theater bus stop near
Kannan Roundana, the driver of the van drove the vehicle in a rash and
negligent manner and hit against the passengers viz., Tirupurasundary,
Jainulapudeen @ Sheik Jainulapudeen and Sasikala, who were waiting for the
bus. After hitting them, the vehicle did not stop and it went and hit against the
police booth near Rajiv Gandhi statue. In the said accident, Tirupurasundary
got injuries over her right knee and hip, Jainulapudeen sustained head injuries
and Sasikala sustained simple injuries on her left leg. Despite all the three
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Crl.R.C.No.585 of 2017
were taken to the hospital for treatment, Tirupurasundary and Jainulapudeen
succumbed to the injuries.
3. On the complaint given by PW1/Thameem Ansari, a case has been
registered in Crime No.249 of 2014 of H1-Washermenpet Traffic
Investigation wing under Section 337 (4 counts) IPC and FIR was prepared.
4. PW18/Selvakumar, Traffic Inspector of the Investigation Wing took
up the case for investigation, went to the place of occurrence and inspected in
the presence of the witnesses and prepared Observation Mahazar (Ex.P3) and
rough sketch (Ex.P15). He also examined the witnesses and recorded their
statements. Subsequently, he altered the charges into Sections 304A (2
counts), 337 IPC and 184 M.V Act and sent the alteration report to Court.
After getting the death intimation of the deceased Tirupurasundary and
Jainulapudeen, he went to the hospital and got the death declaration and
thereafter, conducted inquest on the body of the deceased. He also examined
the doctors, who conducted the postmortem of the deceased and registered the
accident registers and got the relevant certificates. He sent the vehicle
involved in the accident to the Inspector of the Motor vehicle Inspector and
got his report. After examining the rest of the witnesses and completing the
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Crl.R.C.No.585 of 2017
investigation, he filed the charge sheet under Sections 304(A) (2 counts), 337
IPC and 184 M.V.Act.
5. When the accused was questioned before the Court, he denied the
charges and hence, trial was conducted. During the course of trial, on the side
of the prosecution, 18 witnesses were examined as PW1 to PW18 and 20
documents were marked as Exs.P1 and P20. On the side of the defence, no
witness was examined and no document was marked. At the conclusion of the
trial and after considering the materials available on record, the learned trial
Judge found the accused guilty for the offence under Section 304(A) (2
counts) and 337 IPC and 184 M.V.Act and convicted the accused and
sentenced him as under:
Offence Punishment Imposed
304(A) IPC (2 To undergo one year rigorous imprisonment and
counts) to pay a fine of Rs.2,000/- each in default SI of
one month each
337 IPC To undergo two months Rigorous Imprisonment
184 M.V.Act To pay a fine of Rs.1000/- in default Simple
Imprisonment 2 weeks
6. Aggrieved over that the accused preferred an appeal in C.A.No.172
of 2016 before the Sessions Court and the same was also dismissed by
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Crl.R.C.No.585 of 2017
confirming the judgment of the trial Court. Hence, the petitioner/accused has
preferred the present Criminal Revision Case.
7. The learned counsel for the petitioner submitted that the evidence of
the prosecution does not disclose that the accused was driving the vehicle in a
rash and negligent manner; the evidence of PW6/Kumara would also show the
probability that the accident could have occurred due to the mechanical failure
in the vehicle; the rash and negligent driving cannot be inferred from the
speed at which the vehicle was driven just because the vehicle was driven
speedily it cannot be concluded that the driver had driven the vehicle in a rash
and negligent manner; by so stating the learned counsel for the petitioner
prayed that the judgment of the Sessions Court has to be set aside and the
petitioner should be acquitted.
8. The learned Government Advocate (Crl.Side) appearing for the State
submitted that the evidence of the prosecution would show that the rash and
negligent manner in which the van was driven by the accused and the Courts
below had appreciated the evidence in the right perspective and arrived at the
correct conclusion about the guilt of the accused and hence, it has to be
confirmed.
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Crl.R.C.No.585 of 2017
9. The one and only contention of the petitioner is that he did not
contribute to the cause of the accident and the accident could have occurred
due to mechanical failure. On perusal of the evidence of PW6/Motor Vehicle
Inspector, it is seen that he has stated the following in his cross examination:
“F/tp/ rk;gtk; ele;J 10 ehs; fHpe;J
thfdj;ij Ma;t[ bra;Js;nsd; vd;why; rhpjhd;/
jiljpwd; fz;lwpaKoatpy;iy vd;W vd;
mwpf;ifapy; Fwpg;gpl;oUe;njd; vd;why; rhpjhd;
gpnuf; bgapypah; Vw;gl;lhy; ,J nghd;w tpgj;J
Vw;gl;L Kd; brhd;d nrj';fs; Vw;gl tha;g;g[s;sjh
vd;why; rhpjhd;/ thfdj;ij Xl;o ghh;j;J Ma;t[
bra;atpy;iy vd;why; rhpjhd;/ gpnuf; bgapypah;
Vw;gl;L thfdk; jLg;g[ Rthpd; kPnjh my;yJ
eilnkil. Rth; nghd;w gFjpapd; kPJ nkhjpdhy;
nkw;go nrj';fs; Vw;gl tha;g[z;L vd;why;
rhpjhd;/”
10. By drawing the attention of this Court to the above evidence of
PW6, the learned counsel for the revision petitioner claimed that the accident
could not have happened due to the rash and negligent driving of the driver
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Crl.R.C.No.585 of 2017
and it had occurred only due to the mechanical failure of the vehicle. The
whole reading of the evidence of PW6 along with his certificate, which has
been marked as Ex.P2, would show that the Motor vehicle Inspector had given
his opinion without doing road test. Since no defect was noticed on the
relevant part of the vehicle, he had proceeded to record his opinion that the
accident could not have happened due to mechanical failure. PW6 has stated
in his cross-examination that there is a possibility that the accidents could
occur due to mechanical failure. The said statement of the Motor Vehicle
Inspector is a generalised one and it does not have any direct relevance to the
vehicle involved in the accident. The Motor vehicle Inspector had inspected
the vehicle and given a finding that there is no mechanical defect.
11. It is also worthwhile to appreciate the evidence of eye-witnesses,
who have seen the vehicle while causing the accident. PW1/de facto
complainant himself is an eyewitness and he has stated in his evidence that on
the date of occurrence he was standing in the bus stand and witnessed the
accident. He has also stated that in the accident, a woman was injured.
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Crl.R.C.No.585 of 2017
12. The learned counsel for the petitioner claimed that PW1 is the
tenant of the deceased Tirupurasundary and hence, his evidence is not reliable.
All the passengers including PW1 is said to be waiting for the bus. Since
PW1 and the deceased Tirupurasundary were residing in the same house, it is
quiet possible that they could have been waiting in the bus stand to reach the
same place. PW7 has stated in his evidence that while she was waiting at the
bus stop along with his brother (who is also injured), he noticed that the
accused was picking up the cell phone and at that time, the accident had
occurred. It is submitted by learned counsel for the petitioner that such
information was given by PW7 during his cross examination and not in chief
examination. The above answer was given to the questions put by the learned
counsel for the defence. So, in my opinion, it is spontaneous and believable.
13. More than the evidence of the eye witnesses, the manner in which
the accident had taken place is also relevant to decide about the negligence on
the part of the driver. After having hit the passengers, the vehicle did not stop
and it went and hit on the police booth near Rajiv Gandhi Statue, which shows
that the driver did not have any control over the vehicle and he did not notice
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Crl.R.C.No.585 of 2017
the passengers who were standing near the bus stop. It is true that just
because the vehicle was driven rashly, it cannot be said that the vehicle was
driven in a rash and negligent manner. But the evidence of the prosecution
would show that the vehicle was not only driven in a high speed but also
driven in the negligent manner so as to hit against the passengers, who were
standing near the bus stop. The case of the defence is that the vehicle had hit
against the passengers because they had suddenly crossed the road.
Admittedly, they were standing near the bus stop and were waiting for the bus
to come. During such situation, there is no reason to cross the road.
Excepting a suggestive reply given by PW6 that there is nothing on record to
show that the accident had occurred due to any mechanical failure. From the
evidence of the doctors, who have conducted postmortem, it is clear that the
death of the victims had occurred because of the severe injuries sustained by
them. There is nothing on record to show that the accident had occurred only
due to mechanical failure. The oral and documentary evidence of the
prosecution would establish the negligence on the part of the accused while
driving the van at the time of the accident. The Courts below have rightly
found the accused guilty for the offences under Sections 304(A) (2 counts),
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Crl.R.C.No.585 of 2017
337 IPC and 184 of M.V.Act and convicted him by rightly appreciating the
evidence. Hence, I do not find any reason to interfere with the well reasoned
judgement of the Courts below and it does not require any interference.
14. However, the learned counsel for the petitioner submitted that in the
case of dismissing the revision, some indulgence may be shown in the matter
of punishment. It is submitted that the accused used to be a responsible
driver and this accident is unfortunate. He had paid the fine amount. It is also
submitted that the accused is young and he has got two girl children.
15. Considering the submissions made by the learned counsel for the
petitioner, I feel that the sentence with regard to the offence under Section
304(A) IPC (2 counts) can be reduced and modified to the effect that the
accused shall be convicted and sentenced to undergo six months Rigorous
imprisonment.
16. In the result, this Criminal Revision case is partly allowed and the
judgment of the Appellate Court is modified to the extent that the accused is
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Crl.R.C.No.585 of 2017
convicted and sentenced to undergo Rigorous Imprisonment for six months
each for the offence under Section 304(A) IPC (2 counts) and it shall run
concurrently. Rest of the punishment imposed for the rest of offences for
which the accused was found guilty and convicted shall remain unaltered and
will run concurrently.
01.12.2021
Index: Yes/No
Speaking / Non Speaking Order
kmi
To
1.The XVIII Additional District and Sessions Judge,
Chennai
2.The III Metropolitan Magistrate,
George Town, Chennai.
3.The Inspector of Police,
H-1, Traffic Investigation,
Vannarapet, Chennai-81.
4.The Public Prosecutor,
High Court of Madras,
Chennai-600 104.
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Crl.R.C.No.585 of 2017
R.N.MANJULA, J
kmi
Crl.R.C.No.585 of 2017
01.12.2021
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