Sakthivel vs State Represented By
2021 Latest Caselaw 24806 Mad

                                                                                   Crl.R.C.No.805 of 2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 16.12.2021

                                                          CORAM:

                                     THE HON'BLE Ms.JUSTICE R.N.MANJULA

                                                 Crl.R.C.No.805 of 2017

                  Sakthivel                                                          ... Petitioner

                                                             Vs.

                  State represented by
                  The Inspector of Police,
                  Vazhapadi police station,
                  Cr.No.495/2009                                                    ... Respondent

                          Criminal Revision Case filed under Sections 397 and 401 Cr.P.C praying
                  to set aside the judgment dated 28.03.2016 passed in C.A.No.85 of 2015 by
                  the learned Principal Sessions Judge, Salem, confirming the conviction and
                  sentence passed in C.C.No.169 of 2009, dated 13.05.2015 by the learned
                  Judicial Magistrate No.6, Salem.
                                         For Petitioner       : Mr.K.V.Sridharan
                                         For Respondent      : Mr.A.Gopinath
                                                               Govt.Advocate (Crl.Side)
                                                            ***
                                                          ORDER

This Criminal Revision Case has been preferred challenging the

Judgment of the learned Principal Sessions Judge, Salem, dated 28.03.2016

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

made in C.A.No.85 of 2015 by confirming the Judgement of the learned

Judicial Magistrate No.6, Salem, dated 13.05.2015 made in C.C.No.169 of

2009.

2. This case has arisen out of a traffic accident. The case of the

prosecution is that on 20.06.2009, at about 10.15 a.m., when the son of the

defacto complainant-PW.1 (Karuppannan) was playing on the left side of the

road near PW.1 cycle shop, the two wheeler bearing registration No.TN-27P-

8389 driven by the accused from Attur to Salem, East to West came in rash

and negligent manner, hit against the boy. The boy was immediately taken to

the hospital, but he could not survive the injuries and died. A case was

registered in Crime No.495 of 2009 for the offences under Sections 279 and

338 IPC (later it was altered into offence under Section 304(A) IPC) of

Vazhapadi police station and a FIR was prepared by PW.13-Sub Inspector of

police [Madaiyan]. He took the case for investigation and went to the place of

occurrence. He prepared an Observation Mahazar and examined the witnesses

and recorded their statements. On hearing the death of the deceased, he altered

the charges from Sections 279 and 338 IPC to 279 and 304 (A) IPC. PW.14-

Inspector of Police [Muralidharan] sent the alteration report to the Court and

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

continued the investigation. He conducted inquest on the body of the deceased

and prepared an inquest report. Thereafter, he sent the body for post-mortem

and got the post-mortem certificate . He arrested the accused on 17.08.2009 at

about 18.30 hrs and sent him for remand. He also sent the vehicle involved in

the accident for inspection and got the Motor Vehicle Inspector's report. He

also enquired the Motor Vehicle Inspector and completed his investigation.

After the case was taken on file and on being satisfied with the materials

produced before the Court, the learned trial Judge framed charges against the

accused for offences under Sections 279 & 304 (A) IPC. The accused has

been questioned. Since the accused pleaded innocence and claimed to be tried,

trial was conducted.

3. During the course of trial, on the side of the prosecution 14

witnesses were examined as PWs.1 to 14 and 8 documents have been marked

as Exs.1 to 8. On the side of the accused, no witness was examined and no

document was marked.

4. After conclusion of the trial and after considering the materials

available on record, the learned trial Judge found the accused guilty and

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

convicted him for the offences under Sections 279 & 304(A) IPC and

sentenced to undergo 6 months R.I for the offence under Section 279 IPC and

to undergo 1 year R.I and to pay a fine of Rs.1,000/-; in default to undergo 3

months R.I for offence under Section 304(A) IPC.

5. Heard the learned counsel for the petitioner/accused and the

learned Government Advocate (Crl.Side) for the State.

6. The learned counsel for the petitioner/accused submitted that

the accident had not taken place due to the rash and negligent driving of the

driver of the two wheeler; only because the boy crossed the road suddenly; the

accident occurred; the witnesses, who were examined on the side of the

prosecution, are not real eye witnesses for the occurrence and their cross

examination would show the same; the doctor, who conducted the post-

mortem, dealt with only the injury sustained by the deceased; therefore, the

learned trial Judge cannot convict the accused based on the rough sketch

alone; further, the learned lower appellate Judge had not appreciated the

evidence in a correct perspective and convicted the accused. Hence the

criminal revision case has to be allowed.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

7. The learned Government Advocate (Crl.Side) for the State

submitted that the witnesses had categorically explained the manner in which

the accident occurred due to the negligence on the part of the accused driven

the motorcycle; the post-mortem report contains all the details of the injury

sustained by the deceased.

8. Points for consideration:

“Whether the sentence imposed by the lower Appellate Court

confirming the judgment of the learned trial Judge is unfair, improper or not

legal and in conformity with the offence proved to have committed by the

accused?”

9. There is no dispute as to the factum of the accident and the

place of occurrence. It is not in dispute that the boy Vigneshvaran, who is the

son of PW.1, died due to head injury sustained by him in the accident. Despite

it is claimed by the learned counsel for the petitioner that the doctor, who

conducted post-mortem, has not noted the injury, the post-mortem certificate,

which is marked as Ex.P3, would show the list of injuries noticed by the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

doctor at the time of conducting post-mortem. Even during his evidence, he

has stated that Ex.P3-post-mortem would form part of the evidence. So, it

cannot be contended that the doctor had failed to note down the injuries on the

body of the deceased. Further, he also observed that the boy had died only due

to the injury sustained by him.

10. With regard to the eye witnesses, it is seen from the evidence

of Pws.1 to 5 and 7 and 8 that they had stated clearly about the manner in

which the accident had taken place. They have stated that at the time of

accident, the boy was playing near the cycle shop of PW.1. The motorcycle

driven by the accused came in a rash and negligent manner and hit against the

boy.

11. The learned counsel for the petitioner invited the attention of

this Court that the witnesses have stated that they did not know how the

accident had taken place. It is to be noted that these witnesses were examined

in chief on 20.01.2009 and they have been cross examined after 4 years on

11.04.2012, despite the petitioner was present during the examination in chief.

But he frequently absented himself when the matter stood for cross

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examination. The petitioner has not chosen to cross examine the witnesses on

the same day when examination-in-chief was done. Within four long years,

there is every possibility for tampering the witnesses. PW.7 and PW.8 did not

cross examine and their evidence remains unchallenged.

12. It is submitted by the learned counsel for the petitioner that

some of the witnesses have stated that the boy was playing on the road. The

boy was playing near his father's cycle shop during that time. The cycle shop

is in the corner of the road and hence the boy could not have gone to the

middle of the road or crossed the road, while playing near the cycle shop. The

accident has taken place when the boy was playing near his father's cycle

shop. Despite none of the witnesses and the complainant have stated that the

accident has taken place while the boy was crossing the road. PW.13

Investigating Officer has stated during his cross examination that in the FIR, it

is stated that the accident occurred when the boy was crossing the road.

PW.13 has given the evidence in an irresponsible manner without perusing the

records and in fact his evidence is against his own investigation. Neither FIR

nor the charge sheet disclosed that the accident had taken place when the boy

was crossing the road. The Motor Vehicle Inspector has given clear certificate

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that the accident was not due to the mechanical failure. Since the oral,

documentary and medical evidence and other circumstances established before

the Court cumulatively proved the guilt of the accused. Since the Courts

below have appreciated the evidence in a correct perspective, I find no reason

for interference.

13. The learned counsel for the petitioner requested that some

indulgence has to be shown in the matter of sentence as he has a family of his

own and he has not done any other accident. It is unfortunate that a small boy

was killed in an accident. Considering the absence of any criminal records in

the name of the petitioner/accused, I feel that some indulgence can be shown.

14. In the result, this Criminal Revision Case is partly allowed.

The judgment of the trial Court is confirmed. The sentence imposed on the

accused is modified and the sentence is reduced and the accused is sentenced

to undergo 6 months Rigorous Imprisonment and imposed with a fine of

Rs.1,000/-; in default, to undergo 3 months R.I., for the offence under Section

304(A) IPC. Same punishment be imposed on him for the offence under

Section Section 279 IPC. If the fine amount has already been paid by the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

accused, he need not pay. The period of incarceration undergone by the

accused can be set off under Section 428 Cr.P.C. The learned trial Judge is

directed to issue non-bailable warrant for securing the accused and send him

to prison to undergo the remaining period of sentence.

16.12.2021 Index: Yes/No Speaking / Non Speaking Order rpl

To

1.The Principal Sessions Judge, Salem

2.The Judicial Magistrate No.6, Salem.

3.The The Inspector of Police, Vazhapadi police station, Salem.

4.The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.805 of 2017

R.N.MANJULA, J

rpl

Crl.R.C.No.805 of 2017

16.12.2021

https://www.mhc.tn.gov.in/judis